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Convicting for Computer Child Pornography

Which computer activities lead to liability in the U.S. and the Netherlands

Date:

April 2011

Subject:

Master Thesis Law and Technology

Faculty:

Tilburg Institute of Law, Technology and Society

Author:

A.W.J. Dubach

Student number:

425099

University Supervisor:

Prof. Dr. E.J. Koops

Convicting for Computer Child Pornography


Which computer activities lead to liability in the U.S. and the Netherlands

Preface
In front of you is the Master Thesis that has researched how certain actions with use of a computer can
constitute the criminal offense of having possession of and obtaining access to child pornography. I
have written this Master Thesis to complete my master study of Law & Technology at the Tilburg
Institute for Law and Technology.
Criminal law and technology have always fascinated me and have been very lucky that I have found a
research topic in which I could combine both aspects of law. Working on this thesis has given me much
joy and it was a personal challenge for me to overcome any obstacle that I would encounter when
writing this thesis. At times I struggled to make sense of, and had troubles with structuring, the huge
amount of data that I had collected. I hope you enjoy reading it as much as I have enjoyed writing it.
Here I would like express my thanks to prof. dr. E.J. Koops, or Bert-Jaap Koops as I have come to know
him. He has been of great help guiding me through the writing experience of my master thesis with his
excellent and timely feed-back and advice on all my questions, and for steering me on the right track
when I was unsure which route to follow. I also want to express my gratitude to Mr. Koops for the way
he communicated with me, he was very open and honest and always approachable when I needed
guidance, but more over I really enjoyed are conversations and have gained a lot of respect for Bert-Jaap
as a person and I have enjoyed having had the chance to work with him.
I also want to express my gratitude to my former girlfriend Monique Jochijms. During the writing of my
thesis she has helped me with her love, support and guidance. She was there for me when I needed to
someone to talk to and supported me throughout the writing process.
Furthermore, I express my thanks to Menno de Vries who was a real buddy of mine during all the
sessions we made in Montesquieu building when working on our master theses. I treasure all the
meaningless conversations and free coffees that have distracted me from my thesis.
Also, I would like to express my thanks to Karen Geelhoed for helping me translate the Dutch legislation
into proper English terminology. And of course a special thanks to all my friends for all the lovely
weekends with tennis and going out and so on, which kept my mind balanced, and my social life very
much alive during the writing of my thesis.
Needless to say, a big thanks to my parents who have always believed in me and have helped me to
strive for the highest possible education. When I graduate it is also for a big part thanks to your help,
guidance, and love.

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Convicting for Computer Child Pornography


Which computer activities lead to liability in the U.S. and the Netherlands

Summary
I have written this Master Thesis Law and Technology to complete my Master Law, Technology and
Society at Tilburg University. The goal of this Master Thesis was to research what standards are applied
to judge how the caching of files, files found in the trashcan/recycle bin, the deleting of files and the
saving of files constitute the criminal offense of knowing possession of child pornography in the United
States, and intentional possession of child pornography in the Netherlands. Furthermore I have
researched which standards are applied to judge the online viewing of child pornography as a the
criminal offense of obtaining access to child pornography with intent to view in the United States, and
the offense of obtaining access to child pornography in the Netherlands.
A similar research has not yet been conducted so the results that this research has yielded can be used
for follow up research on this theme, or as scientific data for whoever is interested in this field of
research. Furthermore, the translations that I have provided for the Dutch case-law can be used in other
comparative studies with regard to the possession of and obtaining access to child pornography. Due
to the lack of native Dutch speakers around the world this master thesis will add to the current
knowledge available in this field.
For my research I have used a desk research concentrating on all relevant literature and case-law that
was available. I have also used the comparative legal research method to determine the similarities and
differences of possessing and obtaining access to child pornography between the Netherlands and the
United States.
I started out by researching each nations legal history with regard to the drafting of their respective
anti-child pornography legislation to obtain an insight into which behavior relating to child pornography
particularly is deemed to be criminal. These results have enabled me to formulate the rationale behind
each nations anti-child pornography legislation, which I have used to compare the case-law to.
The United States apply different standards to determine whether a person knowingly possessed child
pornography depending on where the child pornography is found, and depending on what actions have
been performed with the child pornography. In the United States the caching of files is criminal, and so
is child pornography found in the trashcan/recycle bin and the deleting of child pornography. The saving
of child pornography files is evidently criminal when seen in the light of the standards that are applied in
the United States. These standards are extensively discussed in the conclusion of this master thesis.
With regard to the criminalization of acquiring access to child pornography with intent to view it is
unclear if this is supposed to be seen as a separate criminal offense or that it is used as additional
evidence on other offenses relating to child pornography.
The Netherlands also apply different standards to determine whether a person intentionally, or at least
conditionally intended to, (have)possess(ed) child pornography depending on where the child
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Convicting for Computer Child Pornography


Which computer activities lead to liability in the U.S. and the Netherlands

pornography was found, and what actions were performed with the child pornography. In the
Netherlands the caching of files, child pornography found in the trashcan/recycle bin as well as the
deleting and saving of child pornography are criminal, with certain exemptions that are applied. These
exemptions are also explained in the conclusion. With regard to the question what standards are
applied to judge whether obtaining access to child pornography is criminal, I cannot provide a conclusive
answer as there is no case-law to support a widely accepted conclusion.

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Convicting for Computer Child Pornography


Which computer activities lead to liability in the U.S. and the Netherlands

Table of contents
SUMMARY ............................................................................................................................................................. 3
TABLE OF CONTENTS.............................................................................................................................................. 5
CHAPTER 1. INTRODUCTION .................................................................................................................................. 7
CHAPTER 2: ANTI-CHILD PORNOGRAPHY LEGISLATION OF THE UNITED STATES OF AMERICA; A BRIEF HISTORY . 10
2.1. THE FIRST AMENDMENT AND THE OBSCENITY LIMITATION TO THE FREEDOM OF SPEECH ....................................................10
2.1.1 The obscenity qualification through the Miller case ..................................................................................11
2.1.2 Goodbye Miller, welcome Ferber! ..............................................................................................................12
2.2. FROM FERBER TO THE CHILD PROTECTION ACT OF 1984 AND FURTHER ........................................................................12
2.3. TOWARDS CRIMINALIZING POSSESSION OF CHILD PORNOGRAPHY ..................................................................................13
2.4. KEEPING UP WITH TECHNOLOGY: THE CHILD PORNOGRAPHY PREVENTION ACT 1996 (CPPA) .......................................14
2.5. CHALLENGES TO THE CPPA ON GROUNDS OF THE FREEDOM OF SPEECH .........................................................................16
2.5.1. Free Speech Coalition v. Reno .................................................................................................................16
2.5.2 Ashcroft Attorney General et al. v. Free Speech Coalition et al ...............................................................18
2.6. THE PROTECT ACT 2003 ......................................................................................................................................20
2.7. CONCLUSION .....................................................................................................................................................22
CHAPTER 3: ANTI-CHILD PORNOGRAPHY LEGISLATION OF THE NETHERLANDS; A BRIEF HISTORY ....................... 23
3.1. THE CRIMINALIZATION OF PORNOGRAPHY IN THE DUTCH CRIMINAL CODE IN 1886 .........................................................23
3.2. CHILD PORNOGRAPHY LEGISLATION IN THE 1960S AND 1970S ..................................................................................24
3.3. THE CHANGES PROPOSED BY THE ADVIESCOMISSIE HERZIENING ZEDELIJKHEIDSWETGEVING AND ITS AFTERMATH.................25
3.4. THE INTRODUCTION OF THE FIRST REAL ANTI-CHILD PORNOGRAPHY ARTICLE ...................................................................26
3.5. MAKING THE PUNISHMENT FIT THE CRIME................................................................................................................27
3.6. A WHOLE NEW PLAYING FIELD ...............................................................................................................................28
3.7. THE CONVENTION ON CYBERCRIME ........................................................................................................................29
3.7.1. The implementation of the Cybercrime Convention into the Dutch legislation .....................................30
3.8. THE LANZAROTE CONVENTION ..............................................................................................................................31
3.8.1. The implementation of the Lanzarote Convention into the Dutch legislation........................................32
3.9. CONCLUSION .....................................................................................................................................................32
CHAPTER 4. THE RATIONALE BEHIND THE ANTI-CHILD PORNOGRAPHY LEGISLATION IN THE U.S. AND THE
NETHERLANDS ..................................................................................................................................................... 34
4.1. THE RATIONALE OF THE U.S. ANTI-CHILD PORNOGRAPHY LEGISLATION...........................................................................34
4.2. THE RATIONALE OF THE DUTCH ANTI-CHILD PORNOGRAPHY LEGISLATION .......................................................................35
4.3. CONCLUSION .....................................................................................................................................................37
CHAPTER 5. CASE-LAW REVIEW OF THE U.S. ........................................................................................................ 38
5.1. CONSTRUCTIVE POSSESSION AS A MINIMUM THRESHOLD LEVEL FOR KNOWING POSSESSION ...............................................38
5.2. KNOWINGLY POSSESSING CHILD PORNOGRAPHY ........................................................................................................38
5.2.1. When is caching of files considered to be knowing possession of child pornography? ..........................38
5.2.2. Files found in the trashcan/recycle bin as evidence of knowingly possessing child pornography ..........43
5.2.3. Deleted files as evidence of knowing possession of child pornography ..................................................44

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5.2.4. Saved files as evidence of knowing possession of child pornography .....................................................47
5.3. KNOWINGLY ACCESSING CHILD PORNOGRAPHY WITH INTENT TO VIEW ...........................................................................47
CHAPTER 6. CASE-LAW REVIEW OF THE NETHERLANDS ....................................................................................... 50
6.1. CONDITIONAL INTENT AS A MINIMAL THRESHOLD LEVEL FOR INTENT ..............................................................................50
6.2. POSSESSING CHILD PORNOGRAPHY .........................................................................................................................51
6.2.1. When is child pornography found in the cache /temporary Internet files considered possession of child
pornography?......................................................................................................................................................51
6.2.2. Files put in the trashcan/recycle bin evidence of possession of child pornography ...............................56
6.2.3. How files retrieved from the unallocated cluster can serve as evidence for possession of child
pornography .......................................................................................................................................................57
6.2.4. Saved files as evidence of possession .....................................................................................................61
6.3. OBTAINING ACCESS TO CHILD PORNOGRAPHY ...........................................................................................................61
CHAPTER 7. CONCLUSION .................................................................................................................................... 63
7.1. RATIONALE OF BOTH NATIONS ANTI-CHILD PORNOGRAPHY LEGISLATION ........................................................................63
7.2. STANDARDS FOR POSSESSING CHILD PORNOGRAPHY FOUND IN THE CACHE FILE ................................................................63
7.3. STANDARDS FOR POSSESSING CHILD PORNOGRAPHY FOUND IN THE TRASHCAN/RECYCLE BIN ..............................................65
7.4. STANDARDS FOR POSSESSING CHILD PORNOGRAPHY FOUND IN THE UNALLOCATED CLUSTERS..............................................67
7.5. IS OBTAINING ACCESS TO CHILD PORNOGRAPHY CRIMINAL? .........................................................................................69
7.6. DIFFERENCES BETWEEN THE U.S. AND THE NETHERLANDS ..........................................................................................70
BIBLIOGRAPHY ..................................................................................................................................................... 71

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Chapter 1. Introduction
Child pornography has probably existed for as long as the written word.1However, since the upcoming of
the Internet era and the development of new technologies, the child pornography landscape has
changed considerably. Before the upcoming of the Internet individuals, who wished to view this kind of
material, would need to seek it out, have it delivered to their house, and the format of the child
pornography were mostly magazines, videos and photographs.2 Such material was difficult to transport
without detection, the production of the material was hampered by the need to have the film processed
and the equipment for such actions was relatively costly and difficult to use.3Not to mention the high
risk of discovery that was involved in obtaining the material, as such material was often sent to a home
address or postal box that belonged to a real person which could be identified and prosecuted.
Where originally the distribution of child pornography took place through, real, physical images in print
media as described above, in the present day computers and Internet play a predominate role in the
distribution of such material. Whereas previously the production was expensive because it had to be
processed onto a film, it now had become very inexpensive as new, easy to use, and inexpensive data
mediums were developed to store the materials onto. It was now possible to upload the materials onto
data mediums such as videotapes, CD-ROMs, DVDs, external hard disk drives and USB sticks. Also, the
upcoming of these new data carriers made it far easier to spread pornographic material, because now
one only needed to connect them to, or insert them into, a computer, upload the material and then
spread the content using the Internet in relative anonymity.
The impact and role that the Internet has played, and is still playing, in the production, dissemination
and collection of child pornographic material is acknowledged by a number of authors; and according to
T. Krone: The Internet has increased the range, volume, and accessibility of sexually abusive imagery,
including child pornography. 4However, not only have the ways in which child pornography is produced
and spread changed considerably, the law also changed considerably to keep its anti-child pornography
content in line with these developments.
Internet has made it possible to view movies and pictures of children in sexually explicit conduct from
behind your computer without the need to store any of such material. Also, methods are developed to
delete and encrypt files on your computer as to give the impression that it was never stored on that
computer. Courts in the United States of America and the Netherlands are struggling with cases wherein
there is a clear suspicion that a person has perhaps acted against anti-child pornography legislation, but
in which the proof of such action is hard to find, deleted or too vague for a successful prosecution of
such a suspect.
1

Gillespie, A. Alisdair, Indecent images of children: The ever changing law. Child abuse review 2003, Vol. 14, p.431.
Home Office and Scottish Executive, Consulation: On the Possession of Extreme Pornographic Material, 5, 2005
3
J. Clough, Now you see it, now you dont: Digital images and the meaning of possession, in Criminal Law Forum
(2008) No. 19, p.205
4
T. Krone, A typology of online child pornography offending, in Trends and Issues in Crime and Criminal Justice
2004, p. 279.
2

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I have chosen the United States of America and the Netherlands as the focus nations of my comparative
study because both nations have an extensive case-law database on the subject matter and both have
adapted their laws to deal with the subject matter, which provides me with the insight into the
rationales of the anti-child pornography legislation . Also, the Dutch legislation and case-law on child
pornography are not available in English. As I am very capable in both languages, this thesis will
translate all relevant Dutch material into English so that researcher and/or scholars outside the
Netherlands can use this material for follow up research.
The main research question that this thesis aims to answer is; Which activities with respect to child
pornography constitute the offenses of possessing and gaining access to child pornography with use of a
computer. My sub research questions are: 1. How can the caching of files, the deleting of files and the
saving of child pornographic files with use of a computer constitute the offenses of possessing and/or
gaining access to child pornography under current anti-child pornography legislation in the United States
and the Netherlands? 2. What are the main standards that are applied? 3. Are there differences in each
nations approach? 4. How can a defendant be acquitted of the charges? In order to be able to answer
this question I will first research what is to be understood as child pornography as such in each country
separately; I will do so by delving into each countrys anti-child pornography legislation. Next, this study
will discuss the rationale(s) for criminalizing child pornography legislation. Then this thesis will answer
the question how the specific acts of caching, saving and deleting of files with use of a computer are
deemed to fall under the scope of the anti-child pornography legislation, and how obtaining access to
child pornography or the viewing of child pornography are criminal based on the current anti-child
pornography law and by relevant case-law. Finally, on the bases of these insights, this thesis will be able
to answer the main research question of how the above mentioned actions constitute the criminal
offenses of possessing and/or accessing child pornography and which standards the U.S. and the
Netherlands apply in such cases.
I aim to answer these questions through a desk research. My main sources of information for my desk
research are the current legislation and legislative history behind the anti-child pornography laws. Also,
relevant academic literature and case-law, with regard to possessing and obtaining access to child
pornography, will be consulted. I will also be using the comparative legal research method to determine
the similarities and differences, of possessing and obtaining access to child pornography, between the
Netherlands and the United States.
As explained above, this thesis will start with introducing the legal history behind the enactment of the
anti-child pornography legislation in each country in chapter 2 and 3. This is to give an indication of
which acts and behavior with regard to child pornography are considered to be illegal, and why they
should be prohibited and made criminal under law. Also, this section will then define what is to be
understood as child pornography as such. Furthermore, this investigation will also uncover what
reasoning led to the drafting of new laws and the amending of existing ones by the legislatures in the
U.S. and in the Netherlands. This will provide insight into the rationale(s) for criminalizing child
pornography.

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Based upon the answers provided by the chapters 1 and 2, this thesis will then investigate the ratios
behind each nations anti-child pornography legislation in chapter 4, which will be used to analyze what
acts done by a person are to be seen as a criminal offense under current anti-child pornography
legislation.
These ratios will then be used as a frame of reference to interpret case-law dealing with both topics of
interest, the possession and acquiring access to child pornography, and will indicate which are the legal
requirements for such an act to be covered by the anti-child pornography legislation and to be judged as
such by Court. This thesis will use Westlaw as the case-law database for the U.S. research, which will be
discussed in chapter 5. Key words in this search are knowingly possessing child pornography, knowing
possession child pornography, accessing child pornography, obtaining access child pornography,
Caching possession child pornography, temporary internet files possession child pornography,
unallocated clusters possession child pornography, deleting possession child pornography, recycle
bin possession child pornography, Trashcan possession child pornography,and many more similar key
words. This search yielded numerous results, so when referring to similar cases this thesis will suffice
with referring to that case number only and will not discuss similar cases in detail. For the Netherlands
this thesis will use Rechtspraak.nl and Jure.nl as databases for case-law research, these cases will be
discussed in chapter 6. Key words for this search are: temporary internet files bezit kinderporno,
cache bezit kinderporno, unallocated clusters bezit kinderporno, lost files bezit kinderporno,
recycle bin bezit kinderporno, Prullenbak bezit kinderporno, toegang kinderporno, toegang
verschaffen kinderporno, voorwaardelijke opzet bezit kinderporno, and many similar key words. This
research yielded numerous results, so when referring to similar cases this thesis will suffice with
referring to that case number only and will not discuss similar cases in detail. I have used knowingly as
a key word in my search as it is an element of the penal clause in the U.S. that needs to be fulfilled. A
similar term is found in the Netherlands and is called opzet or voorwaardelijke opzet which requires
that the defendant had intentionally sought out child pornographic material. Knowingly also requires
intent on behalf of the defendant. It will be interesting to see if there are any differences in
interpretation between knowingly and opzettelijk in the case-law. Case-law published in the U.S.
after 20-11-2010 and case-law published in the Netherlands after 15-02-2011 will not be used in this
research due to time constraints.
The conclusion will summarize my findings and will briefly discuss these findings topic wise in chapter 7.
Here I will also share my point of view on the differences between each nations approach to convict
defendants for possessing child pornography.

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Chapter 2: Anti-child pornography


legislation of the United States of
America; a brief history
Child pornography has been a serious concern in the United States, as in the Netherlands. Congress has
actively and repeatedly enacted legislation banning the sexual exploitation of children. However, child
pornography was originally constitutionally protected by the freedom of speech principle laid down in
the First Amendment until it was challenged at the Supreme Court level. The Supreme Court introduced
several amendments to the extent of the freedom of speech which can be seen as a first attempt of
fighting child pornography in all its facets.
This chapter will identify by reference to several subsequent appeal judgments which changes have
been made to the extent of the freedom of speech and how they led to the drafting of the Child
Pornography Prevention Act (CPPA) of 1996, while also paying attention to all other legislation drafted
by Congress until then. This chapter additionally provides the changes in interpretation that have been
made to the CPPA by appeal judgments made against this Act and how the outcomes of these appeals
were incorporated in the drafting of The Protect Act of 2003. It will also show the reasoning behind why
certain amendments were enacted, which could be of use when interpreting new technological
developments in the current legislation.

2.1. The First Amendment and the obscenity limitation to the freedom
of speech
The First Amendment is a primary part of the U.S. Constitution and it is of great importance when
starting to investigate the U.S. anti-child pornography legislation. It was this First Amendment that
provided the protection against governmental interference with regard to the possession and spreading
of pornographic material depicting children in sexual activity. For anti-child pornography laws to be
drafted, it had to be overcome. This section will show how the First Amendments reach was to be
limited to exclude obscene material, and it will show the aftermath of such a limitation.
The First Amendment of the U.S. constitution states that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.5

U.S. Const. Am. 1

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The freedom of speech is basically understood to be the freedom to speak without censorship or
limitation. Moreover, it is also to be understood as the freedom to seek, receive and impart information
and ideas, regardless of the medium used. Does this mean that child pornographic material is also
governed by this amendment? Well, that depends on how you qualify child pornographic material. First
Amendment case-law differentiates between normal and obscene material, with regard to the first the
First Amendment provides protection, with regard to the latter it does not according to the Miller case,
which will be discussed in the next section.

2.1.1 The obscenity qualification through the Miller case


So the First Amendment is not to be understood as a freedom to receive and seek obscene material.
Then what material is deemed to be understood as obscene? What material constitutes obscene
material was determined in the case of Miller v. California.6This case introduced a three part test, often
referred to as the Miller standard, to qualify a material as obscene in which all three parts must be
satisfied. This test read as follows:
(a) whether the average person, applying contemporary community standards' would find that the
work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in
a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether
the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.7
If a material was qualified as obscene through the Miller standard it enjoyed no First Amendment
protection and granted the government the right to restrict its availability. As a reaction to this ruling,
Congress passed the Protection of Children Against Sexual Exploitation Act in 19778. Congress enacted
this legislation on the findings that child pornography was both highly organized and profitable and
exploited children.9The scope of this Act covered the criminalization of knowingly using a minor younger
than the age of sixteen to engage in sexually explicit conduct to produce a visual depiction.10 This
depiction needed to be qualified as obscene with use of the Miller standard for it to be able to be
prohibited. Also, the trafficking of such materials was now prohibited.11 This Act was a good first
attempt by Congress to deal with the problems relating to child pornography, but because it
incorporated the Miller standard as a strict qualification method, it was soon hereafter deemed
inadequate to fight child pornography successfully by a New York court ruling which will be discussed in
the next section.

Miller v. California 413 U.S. 15 (1973)


Idem note 6 at 39
8
18 U.S.C. 2251-2253 (2000), the Protection of Children Against Sexual Exploitation Act of 1977 has been
incorporated in this text and cannot be found as a loose text anymore
9
S.Rep. No. 95-438 at 5 (1977)
10
18 U.S.C. 2251-2252 (2000)
11
S. A. Mota, The U.S. Supreme Court Addresses the Child pornography Prevention Act and Child Online Protection
Act in Ashcroft v. Free Speech Coalition and Ashcroft v. American Civil Liberties Union, Federal communications law
journal 2002, Vol. 55, p. 87
7

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2.1.2 Goodbye Miller, welcome Ferber!


The case of New York v. Ferber12 extended the obscenity exception to include child pornographic
material and abandoned the Miller standard as a qualification method for obscene material as it was not
a satisfactory solution to the problem of child pornography.13Main difference is that the material
discussed in Ferber is to be determined as obscene per se whereas the material discussed in Miller is
not. In its judgment the Court stated five reasons why the material had to be qualified as obscene per
se:
1. Using children as subjects of pornography could be harmful to their physical and psychological
well-being and child-pornography does not fall within the protection of the First Amendment.14
2. The application of the Miller standard for obscenity is not a satisfactory solution to the problem
of child pornography.15
3. The advertising and selling of child pornography provide an economic motive for and are thus an
integral part of the production of such materials, an activity illegal throughout the Nation.16
4. The value of permitting live performances and photographic reproductions of children engaged
in lewd sexual conduct is exceedingly modest, if not de minimis.17
5. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically
related to sexual abuse of children and is therefore within the states interest and power to
prohibit.18
The relevant measure in determining whether any material constitutes child pornography now had
become whether a child was physically or psychologically harmed in the creation of the material and so
abandoned the need for the material to be obscene in order to constitute child pornography, but
instead, qualified the record of the harm done to the child as being obscene in itself.
As a result of the Ferber case, the freedom of speech principle as laid down in the First Amendment
should from hereon be understood as not to cover speech relating to child pornography. The Supreme
Court ruled that the value of speech in content involving child pornography was outweighed by other
significant considerations, including the prevention of sexual exploitation and abuse of children.19 The
Ferber case thus provided courts with a solid legal basis to fight the advertising, selling and distribution
of child pornography, and was soon hereafter expanded upon, as will be shown in the next section.

2.2. From Ferber to the Child Protection Act of 1984 and further

12

New York v. Ferber 458 U.S. 747 (1982)


Idem note 12 at 759
14
Idem note 12 at 762
15
Idem note 12 at 759
16
Idem note 12 at 761
17
Idem note 12 at 762
18
Idem note 12 at 759
19
Y. Akdeniz, Internet child pornography and the law: national and international responses, University of Leeds,
U.K.: Ashgate, 2008, p.95
13

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The Ferber ruling set the stage for federal legislative action against child pornography, and so the Child
Protection Act of 198420 was drafted. This Act abandoned the Miller standard and expanded upon the
Protection of Children Against Sexual Exploitation Act of 1977. This Act raised the minimum age
requirement for a minor from sixteen to eighteen years. The Committee appointed to draft this
legislation had found that it was extremely difficult for the prosecution to show that the child is under
the age of sixteen once the child hit puberty.21Raising the age to eighteen would facilitate the
prosecution of child pornography cases and raise the effective age of protection of children from these
practices, probably not to eighteen years of age, but perhaps to sixteen.22
This Act was then amended in 1986 by the Child Sexual Abuse and Pornography Act. This Act banned the
production and use of advertisements for child pornography and created civil liability for personal
injuries to children from the production of child pornography.23Also, it defines the term visual depiction
to now also include undeveloped film and videotape.
The next amendment that took place was with the enactment of the Child Protection and Obscenity
Enforcement Act of 1988. During the 1980s the first household computers were being developed and
brought onto the market and transformed the child pornography market in a big way. Obviously,
Congress had to respond to these changes, and soon hereafter the Child Protection and Obscenity
Enforcement Act was drafted as a response. This Act first mentioned the use of computers in
transporting, distributing and receiving child pornography and made these acts with use of a computer
unlawful.

2.3. Towards criminalizing possession of child pornography


The case of Stanley v. Georgia24 will serve as a starting point for discussing whether possession of
obscene material is criminal or not. In Stanley the regional court decided that mere private possession of
obscene matter cannot constitutionally be made a crime.25The court argued that:
It is now well established that the Constitution protects the right to receive information and ideas. This
freedom (of speech and press) necessarily protects the right to receive. This right to receive information
and ideas, regardless of their social worth, is fundamental to our free society. Moreover, in the context of
this case - a prosecution for mere possession of printed or filmed matter in the privacy of a person's own

20

18 U.S.C. 2251-2253
H.R. REP. 98-536, H.R. Rep. No. 536, 98TH Cong., 1ST Sess. 1983, 1984 U.S.C.C.A.N. 492, 1983 WL
25391 at *494
22
Idem note 21
23
S. A. Mota, The U.S. Supreme Court Addresses the Child pornography Prevention Act and Child Online Protection
Act in Ashcroft v. Free Speech Coalition and Ashcroft v. American Civil Liberties Union, Federal communications law
journal 2002, Vol. 55, p. 87
24
Stanley v. Georgia, 394 U.S. 577 (1969)
25
Idem note 24
21

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home - that right takes on an added dimension. For also fundamental is the right to be free, except in
very limited circumstances, from unwanted governmental intrusions into one's privacy.26
However, the court in Osborne v. Ohio27 disagreed with this view and ruled in line with the Ferber
approach. In Osborne the court stressed again the necessity to safeguard the physical and psychological
well-being of a minor by protecting them from falling victim to child pornography. In order to do this it is
imperative to take away the economic motive to produce such materials. However, this court notes that
since the decision in Ferber much of the child pornography market has been driven underground.28 As a
result of this, it was now more difficult, if not impossible, to solve the problem of child pornography by
solely fighting the production and distribution chains, other methods were necessary to combat these
changes in the child pornography scene. They found that penalizing possession of child pornography
would be an effective method to dry up the child pornography market. Penalizing possession also had
other benefits; first of all it would encourage possessors to destroy the material and so would diminish
the continuing harm of the victims.29 Secondly, by encouraging the destruction of the materials people
with an interest in child pornography cannot use these materials to seduce other children into sexual
activity; evidence suggests that people with an interest in child pornography use this method of
grooming.30
As a response to these findings the anti-child pornography law was amended again. The Child Protection
Restoration and Penalties Enhancement Act of 1990 now prohibited the knowing possession of visual
depictions of a minor in sexually explicit conduct. 31 Congress then again amended the law in 1994 with
the Violent Crime Control and Law Enforcement Act to allow restitution to victims of child pornography.
This section has shown how case law established principles for criminalizing possession of pornographic
content with regard to children before the technological revolution that started in the late 80s. This
thesis will expand upon the question what acts exactly, with use of modern day technology, are now
used to fulfill the possession of child pornography penal clause in the U.S., further on in this thesis. The
focus will now shift to the drafting of the Child Pornography Prevention Act of 1996 which was the next
step to keep the law in pace with technological developments.

2.4. Keeping up with technology: The Child Pornography Prevention


Act 1996 (CPPA)

26

Idem note 24
Osborne v. Ohio, 495 U.S. 103 (1990)
28
Idem note 27
29
Often existing obscene materials with regard to the victims resurface after time. Being confronted with these
materials or the possibility hereof, contribute to the harm of the victim. Destroying the material means that the
risk of the material resurfacing is diminished and this directly positively influences the harm felt by the victim.
30
See Attorney Generals Commission on Pornography: Final Report, Vol.2, Washington D.C: U.S. Government
Printing Office, July 1986 (The Meese Commission)
31
18 U.S.C. 2257. Order No. 27652005, 70 FR 29619, May 24, 2005
27

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The CPPA was intentionally drafted to criminalize material that depicts children engaging in sexually
explicit conduct whether or not the content in question involved real children.32 It was foremost
introduced due to the inability of prior legislation to keep up with new technological developments that
purveyors of child pornography were now using to fulfill their need for child pornography. Senator Hatch
said this about the need to reformulate the law to include computer-generated images when the CPPA
was being introduced:
Even more shocking than the occurrence of this type of repulsive conduct is the fact, that under current
Federal law, those pictures, depicting naked children involved in sex with other children, adults and even
animals, would not be prosecutable as child pornography.33
As said before, pedophiles use images of children engaged in sexual activity to seduce other children
into such action. The U.S. Judiciary Committee found that there was no difference between using
computer-generated images and photographic images for such activities:
The effect of computer-generated pornography on a child molester or pedophile using the material to
whet his sexual appetites or on a child shown such material as a means of seducing the child into sexual
activity, is the same whether the material is photographic or computer-generated depictions of child
sexual activity.34
This emphasizes the need that was felt at the time to update the law as to include computer-generated
images (also referred to as virtual child pornography) of child-pornography so that pedophiles will not
have a substitute form of ammunition to fulfill their sexual desires and their planned schemes of luring
other children into sexual activity. Another problem that surfaced through the use of imaging
technology was that it was now even harder for law-enforcement agencies and prosecutors to prove
that certain pictures were in fact produced with use of actual children. The use of real children was a
requirement at that time to qualify the material as child pornographic in nature, expanding the
definition of child pornography to include computer-generated images made the job of the prosecutors
somewhat easier. Congress saw eliminating child pornography and the protection of minors against
sexual exploitation as a:
Compelling governmental interest for prohibiting the production, distribution, possession, sale, or
viewing of visual depictions of children engaging in sexually explicit conduct, including both photographic
images of actual children engaging in such conduct and depictions produced by computer or other
means which are virtually indistinguishable to the unsuspecting viewer from photographic images of
actual children engaging in such conduct.35

32

Y. Akdeniz, Internet child pornography and the law: national and international responses, University of Leeds,
U.K.: Ashgate, 2008, p.97
33
The Child Pornography Prevention Act 1995, Statements of Introduced Bills and Joint Resolutions, U.S. Senate,
13 September 1995 (104th Congres, 2nd session)
34
See U.S. Senate Committee Report 104-538- Child Pornography Prevention Act of 1996, Congressional Findings,
at (8).
35
Idem note 34 at (13)

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As a result of this compelling governmental interest high prison sentences were introduced for
producing child pornography as well as for the possession of such material, repeat offenders convicted
of sexual abuse of a minor could now even risk life imprisonment.36 This illustrates the severity with
which child pornography was now to be fought, and how it was seen as a problem that needed to be
dealt with adequately. Also, the definition of child pornography was once again amended, and was now
to be understood as:
Any visual depiction, including any photograph, film, video, picture, drawing or computer or computergenerated image or picture, which is produced by electronic, mechanical or other means, of sexually
explicit conduct, where: (1) its production involved the use of a minor engaging in sexually explicit
conduct, or; (2) such visual depiction is, or appears to be, of a minor engaging in sexually explicit
conduct; (3) such visual depiction has been created, adapted or modified to appear that an identifiable
minor is engaging in sexually explicit conduct.37
The definition of child pornography in this form would not stand the test of time however. It was soon
felt that the definitions over this article were too broad and therefore unconstitutional. The next section
will show how case-law influenced the changes made to the definition of what is to be prohibited under
the banner of child pornography.

2.5. Challenges to the CPPA on grounds of the freedom of speech


The enactment of this law was a good first effort in defining the anti-child pornography legislation in
such a way that it now also covered new technological methods for creating and distributing child
pornography.38However, certain citizens of the U.S. found the CPPA to be overbroad and challenged it as
being in conflict with the First Amendment. Most notable cases in this matter were the case of Free
Speech Coalition v. Reno,39 and the case of Ashcroft Attorney General et al. v. Free Speech Coalition et al.
Both cases and their impact on the CPPA will be discussed in this section.

2.5.1. Free Speech Coalition v. Reno


The Free Speech Coalition in this case argued that the CPPA was too broad and vague and interfered
with producing works that were protected by the First Amendment, works like books for the education
and expression of nudity and artworks including nudity such as paintings and drawings. Their main
argument was that the CPPA impermissibly suppresses material that is protected under the First
Amendment by defining child pornography as including visual depictions of adults that appear to be
minors. In the plaintiffs view this would lead to the banning of a wide array of sexually explicit, nonobscene material that has literary, artistic, political and scientific value.40 The District Court held that
36

18 U.S.C. 2251(2000)
18 U.S.C. 2256(2000)
38
The promotion of child pornographic material was criminalized in 18 U.S.C. 2256 (8)(D)(2000)
39
th
The Free Speech Coalition v. Reno, 198 F.3d 1083, 1097 (9 Cir. 1999)
40
Idem note 39
37

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the CPPA was not an improper prior restraint of speech because it is content neutral and clearly
advances important compelling governmental interests.41This ruling was, in the view of the District
Court, in line with the reasoning behind the drafting of the CPPA as the U.S. Senate Committee Report
has shown already. Furthermore the Court held that the CPPA was not too broad, but quite the opposite
as it clearly and specifically defines the prohibited conduct and even gives sufficient guidance to a
person of reasonable intelligence as to what it prohibits.42
However, a majority of the Court of Appeals for the Ninth Circuit disagreed in part with the arguments
made by the District Court and stated that the First Amendment prohibits Congress from enacting a
statute which criminalizes the generation of images of children engaged in explicit sexual conduct. The
Ninth Circuit held the CPPA to be substantially overbroad as it banned materials that were not obscene
under Miller nor found to be produced by exploitation of real children as was the case in Ferber.
According to the Court the CPPA:
sought to stifle the use of technology for evil purposes. This of course was a marked change in the
criminal regulatory scheme. Congress had always acted to prevent harm to real children. In the new law,
Congress shifted the paradigm from the illegality of child pornography that involved the use of real
children in its creation to forbid a visual depiction that is, or appears to be, of a minor engaging in
sexual explicit conduct43
The appeals court held that the terms appears to be (a minor)44, and conveys the impression45 as
mentioned in the CPPA were unconstitutional and overbroad and not clear and specific as the District
Court reasoned. Furthermore it found the terms vague as the CPPA lacked any clear definitions for these
key phrases and feared that its vagueness could permit enforcement in an arbitrary and discriminatory
fashion.46The Appeals Court did mention that when these two sentences were to be removed the
balance of the CPPA was in line with the Constitution. The Appeals Court held that there was no link
between the dissemination of fabricated child pornography and additional acts of real sexual abuse of
children although such a link was indicated by The Meese Commission.47They went on to say that
although such images are immoral and repulsive, they do not involve actual children and furthermore
there is no basis to link computer-generated images with harm to real children as the use of sexual
explicit material of actual children to lure others into sexual activity only played a small part in the
overall problem of harm done to children. And as there is no such correlation the law does not
withstand constitutional scrutiny. Additionally the Court stated that many innocent things can entice
children into immoral or offensive behavior, but that reality does not create a constitutional power in

41

Idem note 39
Idem note 39 at 2309-10
43
th
The Free Speech Coalition v. reno, 198 F.3d 1083, 1097 (9 Cir. 1999)
44
18 U.S.C. 2256(8)(B)(2000)
45
Idem note 44 at 2256(8)(D)(2000)
46
th
The Free Speech Coalition v. reno, 198 F.3d 1083, 1097 (9 Cir. 1999)
47
See Attorney Generals Commission on Pornography: Final Report, Vol.2, Washington D.C: U.S. Government
Printing Office, July 1986 (The Meese Commission)
42

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the Congress to regulate otherwise innocent behavior.48 Although this might seem like nave reasoning
on behalf of the Court it does accurately stipulate the way in which the CPPA was prohibiting certain
behavior in the hope of stopping some of the direct consequences.
This ruling severely questioned the necessity and relevance of certain parts of the CPPA, and showed
how these parts were in fact unconstitutional. This case in combination with the case that will be
discussed in the next subsection led to the drafting of The Protect Act of 2003 that amended the issues
that were addressed by these cases.

2.5.2 Ashcroft Attorney General et al. v. Free Speech Coalition et al


The CPPA was challenged again, this time in 2002 with the appeals case of the previously mentioned
case of Ashcroft Attorney general v. Free Speech Coalition.49 In which the attorney general Ashcroft filed
suit against the ruling of the Ninth Circuit. 50In this case the Supreme Court upheld that the prohibitions
provided in sections 2256(8)(B) and 2256(8)(D) were overbroad and unconstitutional.
With regard to the prohibitions allowed under the Ferber ruling these were to be limited to the
distribution and sale of child pornography and also the production thereof. These actions are all
intrinsically related to the sexual abuse of children in two ways:51
First, a permanent record of a childs abuse, the continued circulation itself would harm the child who
had participated. Second, because the traffic in child pornography was an economic motive for its
production, the State had an interest in closing the distribution network.
The main difference in which kind of speech was protected between the Ferber case, in which speech
was prohibited that itself was the record of sexual abuse, and that of the CPPA was that the CPPA was
now prohibiting speech that recorded no crime at all and did not create any real victims during its
production, namely the computer-generated or virtual images. According to the Supreme Court virtual
or computer-generated child pornography did not qualify as being intrinsically related to the sexual
abuse of children and the harm did not necessarily follow from the speech. Also, virtual or computergenerated speech could qualify as valuable speech under Ferber and should therefore deserve the
protection granted by the First Amendment.52

48

th

The Free Speech Coalition v. reno, 198 F.3d 1083, 1097 (9 Cir. 1999) citing A-G Report at 649-50
Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002)
50
th
The Free Speech Coalition v. reno, 198 F.3d 1083, 1097 (9 Cir. 1999).
51
New York v. Ferber 458 U.S. 747 (1982) at 759
52
Idem note 51 at 760 764. (cited from the original text) Here is stipulated how the Ferber standard which states
that child pornography cannot be seen as valuable speech suffers from two flaws. First, Ferbers judgment was
based upon how it was made, not what it communicated. The case reaffirmed that where the speech is neither
obscene nor the product of sexual abuse, it does not fall outside the First Amendments protection. Second, Ferber
did not hold that child pornography is by definition without value. It recognized some works in this category might
have significant value, but relied on virtual images the very images protected by the CPPA as an alternative and
permissible means of expression. Because Ferber relied on the distinction between actual and virtual child
pornography as supporting its holding, it provides no support for a statute that eliminate the distinction and makes
alternative mode criminal as well
49

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The Supreme Court also rejected the proposition that pedophiles may use virtual child pornography as a
method of seducing children into sexual activity as they found that the speech in question should not be
silenced completely in an attempt to shield children from it. They felt that the availability of such
material does not necessarily encourage pedophiles to engage in illegal conduct, and the absence of
evidence of such a direct connection between speech and imminent illegal conduct does not justify such
a broad measure.53
Finally, The Supreme Court stated that the First Amendment was turned upside down by the
argument that, because it was difficult to distinguish between images made using real children and
those produced by computer imaging, both kinds of images must be prohibited.54The overbreadth
doctrine prohibits the Government from banning unprotected speech if a substantial amount of
protected speech is prohibited or chilled in the process.55Quite the opposite of the better safe than sorry
approach that the CPPA had in mind.
Seen as a whole, the CPPA had certain flaws incorporated in its statutes and an update was necessary to
keep the anti-child pornography legislation in line with the First Amendment so that it can more
effectively combat child pornography in all its forms. Ashcroft et al v Free Speech Coalition et al now
provided an escape for defendants caught with child pornographic material in their possession.
Common procedure was that they would contend that the material was not that of real children but
rather computer generated and thus was constitutionally protected. This way they would avoid
prosecution unless the prosecution could content otherwise. The Attorney Generals office foresaw
great problems for the protection of children and for the prosecution of pedophiles with this
interpretation of the First Amendment because:
The protection of virtual child pornography by the Supreme Court threatens the de facto protection of
all child pornography. In a world in which virtual images are increasingly indistinguishable from reality,
prosecutors are now forced to prove that sexually explicit images involving children were in fact
produced through the abuse of children, an extremely difficult task in todays worldwide Internet child
pornography market.56
Due to the arising of these foreseen and probably unwanted problems when fighting child pornography
a reaction was needed and was drafted with The Protect Act 2003. This Act was formulated to rewrite
certain passages of the CPPA to conform to the changes brought about by the Ashcroft et al v. Free
Speech Coalition et al Supreme Court ruling. The Protect Act 2003 will be discussed in the next section.

53

Stanley v. Georgia, 394 U.S. 557 (1969), 566 and Brandenburg v. Ohio, 395 U.S. 444 (1969), 447
Y. Akdeniz, Internet child pornography and the law: national and international responses, University of Leeds,
U.K.: Ashgate, 2008, p. 107
55
Ashcroft, Attorney et al. v. Free Speech Coalition et al. 535 U.S. 234 (U.S. Supreme Court, 2002), 198 F3d 1083,
16 april 2002, No. 00-795
56
Mr. Jeff Miller, Supreme Court ruling threatens our children, House of Representatives, 17 april 2002, p. H1384
54

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2.6. The Protect Act 2003


The enactment of The Protect Act 2003 was in part a reaction to the Supreme Court decision in the case
of Ashcroft et al v. Free Speech Coalition et al. Since the Ashcroft v. Free Speech Coalition decision it was
common practice for defendants to raise the defense that the images in question were not those of real
children as seen in the previous section. As it is the task of the prosecution to provide evidence that the
child in question is real, the prosecution now faces an immense workload in these cases, as they had to
find proof in each individual case that the child in the image was a real minor, which was hard to
establish. This proof did not have to be delivered by experts only, juries were deemed to be capable of
distinguishing between real and virtual images. 57 Also, the prosecution was not required to provide any
additional evidence or expert testimony for its burden of proof to be met to in showing whether the
images downloaded by the defendant depicted real children and not virtual children.58 Although these
proceedings lowered the burden of proof, it was the question whether such interpretation methods
could withstand the reasonable doubt criteria. In the U.S. legal system no one may be convicted when
there is a reasonable doubt that the defendant has not done the crime he was being tried for. In the
case of whether a child pornographic image was that of a real or virtual child, technology had evolved in
such a way that it was almost impossible to distinguish between images made with use of real children
or with use of computer technology, as was also stated:
In the absence of congressional action, the difficulties in enforcing the child pornography laws will
continue to grow increasingly worse. The mere prospect that the technology exists to create composite
or computer-generated depictions that are indistinguishable from depictions of real children will allow
defendants who possess images of real children to escape prosecution; for it threatens to create a
reasonable doubt in every case of computer images even when a real child was abused. This threatens to
render child pornography laws that protect real children unenforceable.59
It was time for Congress to step up and face these new challenges head on, and so they did. The new
Protect Act 2003 was signed by the House and Senate on the 10th of April 2003 and the President signed
the bill into law on the 30th of April 2003. The President went on to declare that:
The new law confronts an evil that is too often the cause of child abuse and abduction in America the
evil of child pornography. In the past, prosecutors have been hindered by not having the tools needed to
prosecute criminals who create child pornography. Under the Protect Act, weve seen images of children,
even those created with technology, will now be illegal, giving prosecutors an important new tool.
Obscene images of children, no matter how they are made, incite abuse, raise the dangers to children
and will not be tolerated in America.60

57

th

U.S. v. Kilmer, 335 F3d 1132, 1142 (10 Cir. 2003)


th
U.S. v. Slania, 313 F3d 891, 2002, U.S. App. LEXIS 24271 (5 Cir. Tex., 2002)
59
Idem note 58 13.
60
Y. Akdeniz, Internet child pornography and the law: national and international responses, University of Leeds,
U.K.: Ashgate, 2008, p. 118, the old link described there is not working anymore
58

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So the Protect Act of 2003 now also made the possession and production (amongst other offences) of
virtual child pornography illegal.61 Section 502 of the Protect Act of 2003 amended the law as follows:
Section 2252A of title 18, United States Code, is amended--

(1) in subsection (a)


(A) by striking paragraph (3) and inserting the following:
``(3) knowingly-``(A) reproduces any child pornography for distribution through the mails, or in interstate or
foreign commerce by any means, including by computer; or
``(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate
or foreign commerce by any means, including by computer, any material or purported material
in a manner that reflects the belief, or that is intended to cause another to believe, that the
material or purported material is, or contains-``(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
``(ii) a visual depiction of an actual minor engaging in sexually explicit conduct;'';
(B) in paragraph (4), by striking ``or'' at the end;
(C) in paragraph (5), by striking the comma at the end and inserting ``; or''; and
(D) by adding after paragraph (5) the following:
``(6) knowingly distributes, offers, sends, or provides to a minor any visual depiction,
including any photograph, film, video, picture, or computer generated image or picture, whether
made or produced by electronic, mechanical, or other means, where such visual depiction is, or
appears to be, of a minor engaging in sexually explicit conduct-``(A) that has been mailed, shipped, or transported in interstate or foreign commerce by any
means, including by computer;
``(B) that was produced using materials that have been mailed, shipped, or transported in
interstate or foreign commerce by any means, including by computer; or
``(C) which distribution, offer, sending, or provision is accomplished using the mails or by
transmitting or causing to be transmitted any wire communication in interstate or foreign
commerce, including by computer, for purposes of inducing or persuading a minor to participate
in any activity that is illegal.''; and
(2) in subsection (b)(1), by striking ``paragraphs (1), (2), (3), or (4)'' and inserting ``paragraph (1),
(2), (3), (4), or (6)''.62

This was a major change in the U.S. anti-child pornography legislation as this was the first time that
defendants could now successfully be prosecuted for child pornographic materials other than those
made with use of real children. According to Congressman Orrin Hatch, the Chairman of the Judiciary
Committee, the Protect Act strikes a balance between the First Amendment and the Nations interest in
protecting children.63 This Act also amended U.S. Code, part 1, chapter 110 sexual exploitation and other

61

All changes made by the Protect Act of 2003 are amended in the U.S.C.18 2251 -2260A, can be visited at
http://www.law.cornell.edu/uscode/18/usc_sup_01_18_10_I_20_110.html. Last visited at 10-10-2010, law up to
st
date to 1 of February 2010. Includes more offences than possession and production of virtual child pornography
62
Protect Act of 2003, at Section 502, can be found at: http://www.gpo.gov/fdsys/pkg/PLAW108publ21/html/PLAW-108publ21.htm, last visited at 18-01-2011
63
th
Mr. Hatch, 13 January 2003, CR S236-237 at: http://thomas.loc.gov/cgi-bin/query/R?r108:FLD001:S00237>,
visited at 10-10-2010

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abuse of children with these new interpretations, and finalized this chapter, and it remains the same to
this day.64

2.7. Conclusion
This chapter has shown how the anti-child pornography legislation in the U.S. has changed and adapted
with new developments over the years, sometimes these changes were necessary, and enforced by
Supreme Court rulings, to keep the developing legislation in line with the constitutionally protected right
of the freedom of speech granted by First Amendment. At other times the legislation was adapted to
provide the prosecution the means with which it could effectively fight the ever developing market of
child pornography, which was now finding new methods of fulfilling pedophiles and sex offenders
appetites. It is clear that Congress has always valued the interests of the health and wellbeing of
children over the interests of people who have an interest in child pornography. Although some Acts
were too ambitious and overbroad, they always valued the protection of children falling victim to sexual
abuse most.
This chapter has provided a historical overview of the U.S. anti-child pornography legislation, and has
shown the amendments that have been made to the extent of the freedom of speech over the years.
The next chapter will focus on the legislative history of the Dutch anti-child pornography legislation.

64

U.S.C.18 2251 -2260A, I found it irrelevant to sum up all of the articles of U.S.C. 18 2251 -2260A as it
consumes a great deal of text. I will discuss in detail some parts of these articles further on in this thesis, and will
clarify those chosen parts with relevant case-law

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Chapter 3: Anti-child pornography


legislation of the Netherlands; A brief
history
Child pornography has been, and still is, a problem that is of great concern to the people in the
Netherlands. The invention of photography in 1839 made it possible the portray reality as it is, and not
soon hereafter it was already being used for child pornography purposes.65 The Netherlands has always
been a very liberal country in which the freedom of expression and freedom of sexuality are seen as
rights of the people that need to be held in high regard. These freedoms however do have their
boundaries, and one of those boundaries concerns the possession and spreading of child pornography.
This chapter will give an overview of the anti-child pornography legislation that has been enacted and
amended in the Netherlands since the introduction of the Dutch Criminal Code in 1886 (Wetboek van
Strafrecht) with reference to parliamentary papers and case-law where possible. It will also show the
reasoning behind why certain amendments were desirable. This chapter will also address the latest
legislative changes brought forth by the Convention on Cybercrime and the Lanzarote Convention.
Translations of the Dutch penal clauses into English are unofficial and done by me personally.

3.1. The criminalization of pornography in the Dutch Criminal Code in


1886
When the Dutch Criminal Code was introduced in 1886 the Netherlands it contained one article that
dealt with the possession, dissemination and publicly displaying pornography specifically66. Such an
article was now desired as the publics view of what was considered to be decent had changed and now
excluded pornography, and as there was a general consensus that such a common view was to be held
in high regard the legislature decided to shape public sexual morale with the introduction of, what can
be seen as, the first anti-pornography article, which should be interpreted as a negative freedom
concept.67 Thus article 240 of the Dutch Criminal Code was enacted, stating at that time:
He who spreads, publicly displays, fabricates or has in stock, any picture or loose paper for
dissemination, which assaults ones dignity and is objectionable in nature, and of which content he is

65

J.J. Oerlemans, Kinderpornografie op Internet: Dweilen met de kraan open, p.10 with reference to Ferraro &
Casey 2005, p.20
66
st
The Dutch Penal Code was introduced on the 1 of September 1886, can be found in the Staatsblad in the
Netherlands: Stb. 1886, 6
67
R.S.B. Kool, De strafwaardigheid van seksueel misbruik, 1999 p.338.

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aware, will be punished with a maximum prison sentence of three months or a monetary fine of three
hundred guilders at the most.
At this time it was not the intention of the legislature to control public sexual morale, but rather to
protect the common sense of decency and the vulnerabilities of certain individuals that came with it,
against the few persons who would intrusively act against it.68 As a result of the industrialization in the
Netherlands a large part of the working-class level citizens fell into poverty and at that time it was
feared that the level of decency in this layer would be lowered because of it.69Article 240 was amended
to cover not only pictures and leaflets, but also writings and objects. Furthermore, it made it illegal to
manufacture such material(s). The reason behind these amendments was to recover the personal
decency level to a more acceptable level.70
In 1911 more amendments were done to the law. These amendments included the introduction of two
new articles namely Article 240bis and Article 451bis of the Dutch Criminal Code71. Article 240bis made
it illegal to offer or provide writing, pictures or objects, which were objectionable in nature, to persons
under the age of eighteen.72 Article 451bis forbids any material which was suitable to stimulate the
sensuality of the youth.73
The law remained the same for a long period of time until it was being amended in the 1960s and
1970s, these amendments will be discussed in the next section.

3.2. Child pornography legislation in the 1960s and 1970s


As said before, The Netherlands is known for its liberal politics concerning all kinds of topics. So was the
Netherlands in the 1960s. In the 1960s people started to embrace their freedoms more and more and
found that the law was suffocating them in their urge for freedom. These were the years in which the
first birth control medicines were becoming available to the public and in which there was a unknown
openness to sexual freedom and expression. This sexual revolution, as one could name it, led to an
increase in demand of pornographic material and naturally this material became more readily available
than before.74
As a consequence of this liberalism that swept the nation there was a calling for less governmental
interference regarding child pornography.75 In the late 1960s the first amendment to the
zedelijkheidswetgeving (decency law) was a fact, it was now no longer prohibited to buy anti
68

Adviescommisie zedelijkheidswetgeving, Eindrapport, Den Haag, Staatsuitgeverij 1980, p.9


J.J. Oerlemans, Kinderpornografie op Internet: Dweilen met de kraan open, p.11
70
Commissie de Melai 1980, p.9
71
These articles are disposed of in the current Dutch Penal Code but are incorporated into the new art. 240b
72
.J.J. Oerlemans, Kinderpornografie op Internet: Dweilen met de kraan open, p.11
73
Idem note 72
74
Idem note 72. p.12
75
R.S.B. Kool, De strafwaardigheid van seksueel misbruik, 1999, p. 86
69

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conception products and committing adultery was no longer criminalized.76 It was also no longer
forbidden for homosexuals to engage in sexual activity with minors.77 The emphasis had now changed
from a negative to a positive concept of freedom, meaning that the government no longer set
boundaries to limit or forbid certain behavior but now formulated criteria in which certain behavior was
governmentally allowed. The changes in the law that are described above exemplify this transformation.
In 1978 Article 240 was being challenged by the Deep Throat case78. In this case the Hoge Raad (Dutch
equivalent of the Supreme Court) was challenged with the questions whether this movie went against
ones honorability and whether it was objectionable in nature. Both claims where dismissed. With
regard to the question whether the movie was objectionable in nature the Hoge Raad ruled that of such
a thing could hardly be spoken when it concerns adults who totally voluntarily watch a movie with a
exceptional character when it may be taken for granted that these persons wanted to see this movie
despite its exceptional character and if that is the case these persons are unlikely to experience such a
movie and the content thereof as objectionable79The implication of the Deep Throat case was that it
almost made it impossible to successfully invoke Article 240 to prevent a unwanted confrontation with
pornography.80
On the 1st of May 1970 an advisory committee was established, named the Adviescommissie herziening
zedelijkheidswetgeving. This advisory committees task was to investigate whether the articles 240 till
249 of the Dutch Criminal Code were still up to date. They finished their report in 1980; the changes
brought forth by this committee will be discussed throughout the next section.

3.3. The changes proposed by the Adviescomissie herziening


zedelijkheidswetgeving and its aftermath
In this section I will go into the changes brought forth by the advisory committee which submitted its
final report in 1980. As a vantage point for their considerations the committee chose the proposition
that interference by the legislature regarding sexual offenses was only desirable if the sexual freedom of
subjects would lead to undesirable expressions and consequences for fellow subjects.81 Seen in general,
the rapports primary focus was wide and primarily inspired by the changing societal urge that had
arisen regarding the need to amend the penal clauses of rape and sexual assault in relations between
adults and minors.82

76

Idem note 72, p.12 with reference to the Law of May 6 1971, Stb. 1971, 291
Idem note 72, with reference to the Law of April 8 1971, Stb. 1971, 212.
78
Deep Throat, NJ 1979, 93 (1978)
79
Idem note 78
80
J.L. van der Neut, Kinderpornografie. De situatie in Nederland, Delinkt en Delinkwent, 2000 Vol. 2. p.p.109-110
81
H. van der Neut, Het eindrapport van de Adviescommissie Zedelijkheidswetgeving, Delinkt en Delinkwent, 1980,
Vol. 11, p.520
82
Idem note 81
77

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As a reaction to the Deep Throat case and the rapport written by the advisory committee the legislature
decided to propose an amendment of Article 240 of the Dutch Criminal Code, and the article should now
be read as:
With a prison sentence of up to 3 months or a monetary fine of six hundred guilders at most will be
punished, he who knows or has severe reasons to suspect that an image or object is objectionable to
ones dignity, and publicly displays or offers this image or object on or at a space designed for public
transport.83
The proposed amendments to Article 240 of the Dutch Criminal Code led to a lot of discussion in the
Netherlands about the effectiveness of the law in dealing with pornography. At that time it was clear
however that the proposed changes were so liberal in character that it in any case would not lead to far
stretching criminalization of pornography let alone child pornography, and thus was ineffective at
dealing with the matter. The Minister of Justices opinion at that time was that the legislature should
not let a common judgment about the contents of expressions prevail above the respectable
conceptions of those who would like to take note of the contents of such material.84 In saying this he
clearly was an advocate of the current legislation regarding pornography. He felt that the article was
good enough as it was and that the legislature should not have to go as far as to ban pornography or
child pornography as a whole.
In parliament his statement led to little resistance at first, but quite suddenly the discussion about the
bill stagnated, mainly due to criticism of women.85 Suddenly more critics of the proposal came forth and
they addressed their problems with the bill with solid arguments like the fact that pornography is
harmful, whereby the harm is expressed in different ways, but also that pornography is insulting,
discriminatory and offensive.86 These are arguments that are still being used by anti-child pornography
fighters to this day. Due to the tumult brought forth by the proposal a new amendment to the law
seemed inevitable, especially because the police in Amsterdam was now raiding sexshops whereby the
found child pornography was confiscated.87
At about the same time that the actions in Amsterdam were taking place, the American Congress
commission was ,alerted by a Dutch female confidante, depicting the Netherlands as a paradise for child
pornography lovers and a producers. Some feared that this country would be known as the land of
pornography all over the world.88

3.4. The introduction of the first real anti-child pornography article

83

Tweede Kamer 1979-1980, 15 836, 1-3


Memorie van Antwoord 15 836, 6, p. 8
85
J.L. van der Neut, Kinderpornografie. De situatie in Nederland, Delinkt en Delinkwent, 2000 Vol. 2. P. 111.
86
Idem note 85
87
Idem note 85, p. 112
88
Idem note 85, p.112 referring to another note: Handelingen Tweede Kamer 1908-1999, 293, 3, p.2
84

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Due to the sustained pressure of both the societal unrest in the Netherlands and the criticism of the
United States the legislature felt it was necessary to amend the law to meet the demands of the
opposition. As a result a new Article 240b of the Dutch Criminal Code was formulated and accepted in
the bill of 1985.89 The new penal clause was formulated as follows:
With a prison sentence of three months at most or a monetary fine of the third category will be
punished the person who has an image or data carrier containing a depiction of sexual conduct, in which
a person who apparently has not reached the age of sixteen years, is involved, either disseminates or
publicly displays, or has in stock with the intention to disseminate or to publicly display, produces,
imports or carries through or exports such material.
Although this was a memorable first attempt to criminalize the possession and spreading of child
pornography it was not flawless. It lacked a clear age limitations as it incorporated the vague term
apparently has not reached the age of sixteen. And the preventive effect of this article will not have
been very high due to the relatively low penalty maximum. It did incorporate the term data-carrier now,
which was in line with developments at the time like the invention of the first personal computers and
the video recorder, with which the means of storing data changes considerably. With regard to other
forms of pornography the old liberal article remained the guideline.90 The next changes with regard to
anti-child pornography legislation were made in 1994, and these changes will be discussed in the next
section.

3.5. Making the punishment fit the crime


A new bill addressing the child pornography issue was proposed in 1994, it was then ratified in
1995.91The main purpose behind this law was to intensify the fight against the production of child
pornography actively. As was said in the deliberations leading to the enactment of this law: Fighting
child pornography crimes is impossible unless all links in the chain of child pornography, which on the
one hand depend on the production thereof, and on the other hand contribute to it, are being
criminalized. That means that the having in stock of child pornography should be criminalized as
such.92The text of the new Article 240b of the Dutch Criminal Code was now:
1. With a prison sentence of four years at most or a monetary fine of the fifth category will be punished
the person who, is involved, disseminates, publicly displays, produces, imports or carries through, exports
or has in stock an image or data carrier containing a depiction of sexual conduct, in which a person who
apparently has not reached the age of sixteen years
2. Not punishable is the person, who has such an image in stock of which it is established that it is being
used for scientific, educational or therapeutic purposes.
89

Ratified on the 3d of July 1985, Stb. 1985, 385


J.L. van der Neut, Kinderpornografie. De situatie in Nederland, Delinkt en Delinkwent, 2000 Vol. 2. P. 113
91
th
st
Ratified on the 13 of February 1995, Stb. 1995, 575. Enacted later on the 1 of February 1996
92
J .L. van der Neut, Kinderpornografie. De situatie in Nederland, Delinkt en Delinkwent, 2000 Vol. 2. P. 114
th
referring to another note: Handelingen Tweede Kamer, 23 682 April 6 1995
90

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3. With a prison sentence of six years at most or a monetary fine of the fifth category will be punished he
who habitually commits one of the crimes, defined in the first paragraph.

As stated in the previous section, the penalty maximum was so low that it would hardly have any
preventive function at all. This new law changed the penalty maximum considerably, instead of a facing
a maximum of three months in prison it was raised to a maximum of 4 years. This maximum could now
be increased to six years if the violation was habitual. Habitual behavior was to be determined when the
suspect had images in stock during an extensive period of time and these images depict minors that are
involved in sexual conduct.93 The preventive effect problem of the previous Article 240b of the Dutch
Criminal Code was adequately dealt with, and was consequently added weight to with the higher
sentence clause. This new article also deleted the intentionality element with regard to the
dissemination and making publicly available from the penal clause, which enhanced the scope of the
article considerably because now such violations can be more easily established.
In the years to come this legislation was faced with the emergence of the Internet and this opened up a
whole new world of possibilities for the production and dissemination of child pornography. The next
section will discuss how the Internet changed the anti-child pornography playing field.

3.6. A whole new playing field


The development of the Internet in the 1990s opened up a whole new array of possibilities in ways to
produce and disseminate child pornography. Child pornography was now available to everyone with an
Internet connection, and could be transferred from one country to another at the click of a button.
Where previously possessors of child pornography had a collection of for example tens and sometimes
hundreds of pictures, this soon grew to collections of thousands to tens of thousands images containing
child pornography.94 A byproduct of the Internet is that users of child pornography of the Internet can
quickly become the producers themselves.95And to make things even worse, the Internet also lends
itself for online abuse of children. For example, in 1996, a group of pedophiles, joined together under
the name of the Orchid Club, was arrested in the United States. This group of pedophiles used to
sexually abuse children in real-time. Their modus operandi was to have one member transmit real-time
images of a child being sexually assaulted to other members of the club using a digital camera. The other
members could then request certain sexual actions to be performed on the child and could thus direct
the abuse.96 Their members lived in the Europe, the United States and Australia.

93

J.J. Oerlemans, Kinderpornografie op Internet: Dweilen met de kraan open, p.14 referring to another note by
Lunnemann e.a. 2006, p.80
94
Taylor and Quayle 2003, p.161
95
M. Taylor et al, Child Pornography, the Internet and offending, 2001
96
Idem note 95

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The examples above illustrate how the Internet changed the playing field of child pornography and
made it a whole new ballgame. A legislative response to these new forms of child pornography was
needed. As child pornography transcended national borders the members of the Council of Europe
decided to close the ranks and join together in the form of a treaty that specifically dealt with the issue
of child pornography and other computer related crimes. This treaty was called the Convention on
Cybercrime.97The next section will discuss how the Council of Europe and their partners tried to fight
these new changes through the Convention on Cybercrime.

3.7. The Convention on Cybercrime


The Council of Europe and some nations outside of the Council of Europe joined together in a treaty
called the Convention on Cybercrime which was a treaty that was specifically designed to combat crimes
committed via the Internet or other computer networks. One of the main principles of this treaty was to
pursue a common criminal policy aimed at the protection of society against cybercrime by adopting
appropriate legislation and fostering international co-operation.98The Netherlands was one of the
nations that ratified this treaty and thus obligated itself to be bound to its contents, with certain
limitations installed in the treaty itself.
If was felt that the Convention on Cybercrime was needed as the revolution in information technologies
had changed society fundamentally and would probably continue to do so in the near future. 99Although
these new technological revolution had given rise to unprecedented economic and social changes, it
also had a dark side. New types of crimes emerged and traditional crimes could now be committed with
the use of new technologies. Even more important, the consequences of criminal behavior could now be
more far-reaching than ever before because geographical location was no longer a restriction for
committing a crime across borders.
As such, these new technologies challenged the existing legal concepts. In the words of The Explanatory
Report:
Information and communications flow more easily around the world. Borders are no longer boundaries
to this flow. Criminals are increasingly located in places other than where their acts produce their effects.
However, domestic laws are generally confined to a specific territory. Thus solutions to the problems
posed must be addressed by international law, necessitating the adoption of adequate international

97

rd

Convention on Cybercrime, 23 of November 2001, Budapest, can be found at:


http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm last visited on October 26, 2010
98
Idem note 97
99
In the introduction of the Explanatory Report of the Convention on Cybercrime more detailed information can
be found on how technology changed society. This information can be found at:
http://conventions.coe.int/Treaty/en/Reports/Html/185.htm, last visited on October 29, 2010 2010

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legal instruments. The present Convention aims to meet this challenge, with due respect to human rights
in the new Information Society.100
Title 3 of the Convention on Cybercrime dealt with content-related offences, and article 9 of this title
dealt with the issue of child pornography specifically.101 This article was formulated to strengthen
protective measures for children, including their protection against sexual exploitation, by modernizing
criminal law provisions to more effectively circumscribe the use of computer systems in the commission
of sexual offences against children.102This article specifically criminalizes several aspects of the electronic
production, possession and distribution of child pornographic material. At the time most States already
had criminalized the traditional methods of producing and distributing child pornography, but due to the
increasing use of Internet as medium for trading these materials, it was strongly felt that new provision,
dealing specifically with these new forms of sexual exploitation and endangerment of children, needed
to be adopted as an international legal instrument to combat these dangers.
The scope of Article 9 of the Convention on Cybercrime was to establish certain actions regarding child
pornography as criminal offenses under domestic law. These actions will be summed up in short here,
but will be discussed as to what is to be understood under these actions, and why they were formulated
as such in chapter 4, where the rationale behind each nations anti-child pornography legislation is
discussed. Actions now criminalized included actions like producing, producing for distribution, offering
or making available, and distributing or transmitting child pornography through a computer system.103 It
also criminalized procuring child pornography for oneself or someone else and criminalized the
possession of child pornography in a computer system or on a computer-data storage medium.104 The
treaty however reserved the right for Parties to the treaty to incorporate in domestic law, in whole or in
part, paragraphs 1, sub-paragraphs d and e, meaning that with regard to the procuring and possession
of child pornography each country was free to incorporate these statutes as they deemed fit, or not at
all.105

3.7.1. The implementation of the Cybercrime Convention into the Dutch


legislation
On basis of this Treaty the Netherlands made an amendment to the legislation in 2002.106The
amendment of 2002 concerns multiple revisions and modernizations. Article 240b of the Dutch Criminal
Code was expanded upon to now also include virtual child pornography. Furthermore, the element of
having such material in stock was abandoned and replaced by the element of having in its possession.107
Virtual child pornography was added because the new technological developments made it possible to
create life like images of children without the involvement of real children, for an effective approach in
100

Idem note 99, at number 6


Convention on Cybercrime. p.6
102
Idem note 97, at number 91
103
Idem note 101, p.6. Under Article 9 paragraph 1sub-paragraph a to c
104
Idem note 101, p.6. Under Article 9 paragraph 1 sub-paragraph d and e
105
Idem note 101, p.7, Under Article 9 paragraph 4
106
th
Law of July 23 , Stb. 2002, 388
107
Idem note 106, at Artikel 1 C
101

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fighting child pornography, especially on the Internet, it might be needed to act against seemingly real
child pornography.108 The age limit for all conducts named in Article 240b of the Dutch Criminal Code
was raised from sixteen to eighteen years.109Also the exception in Article 240b paragraph 2, for
scientific, educational and therapeutic purposes, was abandoned.110
In this section all changes brought forth by the implementation of the Convention on Cybercrime are
mentioned. Soon hereafter in 2007 another convention was agreed upon in Lanzarote, appropriately
named the Lanzarote Convention. This thesis will discuss this convention and its consequences in the
next section.

3.8. The Lanzarote Convention


Following up on the Convention on Cybercrime the Council of Europe and several other nations met
again in Lanzarote in 2007, hence the name the Lanzarote Convention, with the aim to achieve a greater
unity between its members. This unity was needed as the sexual exploitation of and sexual abuse of
children had grown to worrying proportions at both national and international level, in particular as
regards the increased use by both children and perpetrators of information and communication
technologies, and that preventing and combating such sexual exploitation and sexual abuse of children
requires international co-operation.111 According to the Explanatory Report of the Lanzarote Convention
amendments to the law was needed because:
Children in Europe are not sufficiently protected against sexual exploitation and abuse. In particular the
Committee underlines the lack of exhaustive national criminal legislation in this field in the State Parties,
especially as concerns trafficking of children, sex tourism and child pornography, the lack of a clearly
defined minimum age for consenting sexual relations and lack of protection for children against abuse on
the Internet. It has, for example, recommended that States develop an effective system of reporting and
investigation, within a child-sensitive inquiry and judicial procedure, avoiding repeated interviews of child
victims, in order to ensure better protection of child victims, including the protection of their right to
privacy.112

108

Lunnemann et al, Kinderen beschermd tegen seksueel misbruik: Evaluatie van de partile wijziging in de
zedelijkheidswetgeving, mei 2006, p.21
109
Idem note 108, p.p. 21 -22
110
Idem note 108, p.22
111
Preamble of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and
Sexual Abuse, Lanzarote 25-10-2007. Also known as the Lanzarote Convention, can be found at
http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=201&CM=1&DF=&CL=ENG last visited on
th
October 26 2010.
112
Explanatory Report of the Council of Europe Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse, at point 7, can be found at:
http://conventions.coe.int/Treaty/EN/Reports/Html/201.htm, last visited at November 29, 2010.

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The Lanzarote convention expanded upon the current anti-child pornography legislation by introducing
a new penal clause. Under Article 20 paragraph 1 sub-paragraph f of the treaty it was now criminal to
knowingly obtain access, through information and communication technologies, to child pornography.
Also in Article 23 of this treaty grooming was now made criminal.

3.8.1. The implementation of the Lanzarote Convention into the Dutch


legislation
The Netherlands has incorporated the articles of the Lanzarote Convention into the Dutch Criminal Code
by law of November 26 th 2009.113 However on the 12th of June 2009 there was another amendment that
needs to be mentioned first. This amendment raised the maximum length of the prison sentence for
habitual offenders from six to eight years.114
The incorporation of the Lanzarote Convention made some changes to Article 240b of the Dutch
Criminal Code. The sentence: disseminates, imports, carries through, exports or has in its possession,
was replaced by: disseminates, offers, publicly displays, produces, imports, carries through, exports,
acquires, possesses or obtains access through information and communication technologies.115 Also, the
Lanzarote Convention proposed some alterations such as that the maximum prison sentence can be
raised with a third if the act is committed by two or more joint persons; 116or if the perpetrator has
committed the act against his own child, a child over who he has custody, a child who he nurtures or
raises as belonging to his family, his pupil, or a minor, minor servant or inferior entrusted to him for his
care, education or watchfulness.117These alterations have not yet been incorporated into the Dutch
Penal Code article 240b.

3.9. Conclusion
So on basis of all amendments till now the current text of Article 240b of the Dutch Criminal Code is as
follows:118
1. With a prison sentence of four years at most or a monetary fine of the fifth category will be punished
the person who disseminates, offers, publicly displays, produces, imports, carries through, exports,
acquires, possesses an image or data carrier containing a depiction of sexual conduct, in which a person
who apparently has not reached the age of eighteen years, is involved or seemingly is involved, or
obtains access thereto with use of an automated work or with use of a communication service. has

113

th

Law of November 26 , 2009, Stb. 2009, 544


th
Law of June 12 2009, Stb. 2009, 245
115
th
Law of November 26 , 2009, Stb. 2009, 544, Artikel 1 at A
116
Idem note 115, at Artikel 1 Aa 1
117
Idem note 115 at Artikel 1 Aa 2
118
Article 240b of the Dutch Criminal Code 2011
114

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2. With a prison sentence of eight years at most or a monetary fine of the fifth category will be punished
he who habitually or as a profession commits one of the crimes, defined in the first paragraph.

This chapter has provided an overview of all the amendments that have been made to the Dutch antichild pornography legislation and why the legislator has chosen to do so. The Dutch legislation has come
a long way to develop an elaborate anti-child pornography penal clause. It went from the early liberal,
and therefore criticized viewpoint and legislation, to a tightly formulated and strict penal clause with
adequate punishments set in foresight. But as the child pornography scene is ever developing the Dutch
legislator will have to keep up with future changes and has shown the intent to do so by ratifying and
incorporating treaties like the Convention on Cybercrime and the Lanzarote Convention.
With this chapter an end has come to the legal history of both countries anti-child pornography
legislation.

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Chapter 4. The rationale behind the antichild pornography legislation in the U.S.
and the Netherlands
This chapter will provide insight into the rationales behind the drafting of the anti-child pornography
legislation in both nations. This information provides insight into what behavioral aspects with regard to
child pornography are deemed to be criminal and why this is so. This chapter will first address the
rationales of the U.S. and after that the rationales of the Netherlands.

4.1. The rationale of the U.S. anti-child pornography legislation


After researching the U.S. anti-child pornography legislation I have discovered that three arguments are
used as the foundation on which the anti-child pornography legislation is built. These will be discussed in
this section. All arguments can be found in the Child Pornography Prevention Act of 1996.
The first argument is that it must be prevented that children are psychologically or physically being
harmed by sexual abuse. Children that are being used in the production of child pornography such as
photographs, movies, computer images etcetera are being exposed to the chance that they will
experience physical or psychological harm. This harm must be prevented at all costs and is one of the
principal reasons behind the legislation. Harm can manifest itself in two ways; first there is the
immediate harm when making child pornographic material such as the actual abuse and the traumas
following that abuse. Secondly there is a form of continuing harm that I will now explain. Child
pornography is often a permanent record of the victims abuse that continues to exist and that can
resurface after time, for the victims of that material it means that they are at risk of having to relive that
experience and accompanying harm again when confronted with the recording of their abuse. The risk
of that happening is unacceptable and is also part of the first reason behind the drafting of the anti-child
pornography legislation. Congress puts it in these words: the creation and distribution of child
pornography which includes an image of a recognizable minor invades the childs privacy and
reputational interests, since images that are created showing a childs face or other identifiable feature
on a body engaging in sexually explicit conduct can haunt the minor for years to come.119
The second argument is that it must be prevented that children are being seduced into sexual activity by
confronting them with material of other children engaged in sexual activity. When a child is not as
forthcoming as the abuser would like, the abuser will often send pictures or other material to the
unforthcoming child depicting other children engaging in sexual activity, or posing for pictures, in which
those depicted children are having fun in doing the activity. Often the sending of such material will
119

Child Pornography Prevention Act of 1996

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persuade the child to also take part in such activity. This method of seducing children into sexual abuse
is a grave danger to the children and needs to be stopped. Congress therefore enacted several statutes
in the anti-child pornography legislation of the U.S. to put an end to such behavior by people interested
in child pornography.
The third argument relates to the users of child pornographic material. People with interest in child
pornography often use that material to whet their own sexual appetites, and as a model for sexually
acting out with children. A person that uses child pornography for those reasons can get desensitized
that person to the pathology of sexual abuse of children. He or she can even get so desensitized that the
behavior portrayed in child pornography becomes acceptable and even preferred by that person. Such
sexualization and eroticization of children through any form of child pornography will lead to
encouraging a shift in the societal perception of children. Children will then be seen as sexual objects
and such a view of children will probably lead to further abuse and exploitation of children. This creates
an unwholesome environment for children which will affect their psychological, mental and emotional
development and such an environment will also undermine the attempts of parents and other family to
encourage the sound mental, moral and emotional development of children.
An additional benefit of the anti-child pornography legislation, but not a separate argument for such
legislation, is the fact that by prohibiting the possession and viewing of child pornography it will
encourage the possessors of that material to get rid of it. This will help to protect the victims of child
pornography and will help to eliminate the market that thrives on the sexual exploitation of children.
The above mentioned rationales when drafting the CPPA were based on court rulings that preceded the
drafting of the CPPA. In the Ferber case it was decided that the prevention of sexual exploitation and
abuse of children constitutes a government objective of surpassing importance, for the most part with
referral to the above mentioned rationales.120 The Osborne case went on to state that this governmental
interest extends to stamping out the vice of child pornography at all levels in the distribution chain. In
light of these decisions the government thus has a compelling interest in ensuring that the criminal
prohibitions against child pornography remain enforceable and effective.121

4.2. The rationale of the Dutch anti-child pornography legislation

After exploring the Dutch rationales I have discovered that the rationales underlying the U.S. anti-child
pornography legislation are mainly the same rationales that are applied in the Netherlands. This section
will now discuss the rationales that state the importance of the Dutch anti-child pornography legislation.
The historic overview has shown us how the rationale of the Dutch legislator has changed over the years
with regard to the criminalization of child pornography. In 1886 it was the intention of the legislator to
120
121

New York v. Ferber 485 U.S. 747, 1982


Osborne v. Ohio, 495 U.S. 103 1990

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protect the common sense of decency that had shifted and thus moved the legislator to amend to law.
In the 1960s and 1970s there was another shift in the rationale, sexual freedom was now to be held in
high regard and as a consequence of such a view, legal actions should only be undertaken when it was
absolutely necessary for the protection of the physical and spiritual integrity.122 The western civilization
experienced a period of sexual freedom in which sexual interaction between adults and children was not
bluntly rejected.123Even the question arose whether the penal action after sexual interaction between
adults and children was not more harmful than the interaction in itself.124
Gradually the apprehension crept in that the sexual freedom of one could lead to sexual oppression and
even to an infringement of the physical integrity for others, especially women and children.125 This new
understanding led to the changes brought forth by the changes in the decency law, which have been
addressed earlier on in this thesis. In the years hereafter the law was amended multiple times based on
the idea that protection of people and children should supersede the right of sexual freedom.
The ways in which children can fall victim to child pornography is diverse because the way in which
children are being used for child-pornographic purposes knows many forms, and besides the material
that is without a doubt child pornographic in nature, there exist other form of so called child erotica
which are not covered by the scope of the penal clause of 240b of the Dutch Penal Code, but which
certainly fall within the principle of the protect worthiness of children.126
With this principle it is meant that children must be protected against images that suggest sexual abuse,
against behavior that can be used to encourage or seduce children to take part in sexual behavior and
against behavior that can be seen as taking part in a subculture that stimulates children into sexual
abuse.127 These are the exact same three rationales that are also used in the U.S. These three rationales
are not explained further in documents found in the Netherlands, but are addressed in the original text
of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual
Abuse128, which is ratified by the Netherlands and incorporated into its legislation.
According to the Council of Europe, the sexual exploitation of children and in particular referring to child
pornography, and all other forms of sexual abuse of children, are destructive to the health of children

122

Richtlijn Kinderpornografie, 1-5-2007, can be found at


th
http://www.om.nl/organisatie/beleidsregels/overzicht/zeden/@155136/richtlijn/, last visited on the 30 March
2011
123
Idem note 122
124
Idem note 122
125
Idem note 122
126
Aanwijzing Kinderpornografie, 1-1-2011, can be found at
th
http://www.om.nl/organisatie/beleidsregels/overzicht/zeden/@155181/aanwijzing/, last visited on the 30 of
March 2011
127
Idem note 126
128
Preamble of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and
Sexual Abuse, Lanzarote 25-10-2007. Also known as the Lanzarote Convention, can be found at
http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=201&CM=1&DF=&CL=ENG last visited on
th
October 26 2010

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and their psychological and social development.129 This is the same rationale as is discussed as the first
rationale of the U.S. It is only logical that preventing harm to children done by the child pornography
industry would be the leading rationale in the Netherlands too.
With the investigation and prosecution of child pornography the focus needs to be aimed primarily at
the identification of the victims, perpetrators of sexual abuse and the production of child-pornographic
imagery. 130Possession of child pornography (and child erotica) can serve as an indicator for an
investigation of possible abuse and production

4.3. Conclusion

This chapter has shown that the rationales for criminalizing child pornography offenses are similar in
both nations. Both nations apply the same three rationales for criminalizing child pornography.
1. Physical, psychological or emotional harm done to children by sexual exploitation needs to be
forbidden.
2. It must be prevented that children are seduced into sexual exploitation by using material that
depicts other children engaged in sexual activity or posing for pictures.
3. A subculture in which sexual abuse of children is accepted must be prevented.
The next chapters will explore the case-law in the U.S. and the Netherlands with regard to the
possession, and viewing (U.S.)/ gaining access to (the Netherlands), of child pornography through
certain acts performed with a computer. This chapter has provided the main reasons for criminalizing
acts relating to child pornography and certain aspects of these rationales will be used by the courts as a
foundation upon which to build a conviction.

129
130

Idem note 128


Idem note 126

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Chapter 5. Case-law review of the U.S.


This chapter will discuss the case-law of the U.S. dealing with the knowing possession of and knowingly
obtaining access to- child pornography. This thesis will first explain how constructive possession is being
used as a minimal threshold level for establishing knowing possession. Next this thesis will explore how
the definition of knowingly is being defined and construed in the case-law in the U.S. and will distill what
the main standards are for establishing knowing possession of child pornography. Possession of child
pornography is an offence that in essence takes two forms. The first is simple possession; this is a form
of possession where the possession alone is sufficient to constitute an offence.131 The second is
possession accompanied by an additional intent, such as an intention to sell or supply.132This chapter
will use case-law based on the current meaning of the articles 2252 and 2252A of the U.S.C; case-law
based on the older versions of these articles will be left out of this search and analysis. Furthermore,
case-law after 20-11-2010 will not be taken into account due to time constraints.
The main focus of this chapter is to investigate how the caching of websites, files found in the
trashcan/recycle bin and the saving and deleting of images and online viewing of child pornography and
constitute to knowingly possessing child pornography and knowingly obtaining access to child
pornography.

5.1. Constructive possession as a minimum threshold level for knowing


possession
Possession can be established in two ways. Possession can be actual possession which means that a
person has direct physical control of something on or around his person.133 A person who is not in actual
possession, but who has both the power and the intention to exercise control over something is in
constructive possession of it.134

5.2. Knowingly possessing child pornography


5.2.1. When is caching of files considered to be knowing possession of child
pornography?
These days knowing possession of child pornography can be assumed by looking through ones cache
file on a persons computer. To understand how one can be convicted on basis of what is in your cache
file it important to understand what a cache file is exactly. So what is this cache file exactly? A cache file
131

U.S.C. 2252(4) and 2252A (5)


U.S.C. 2252(3) and 2252A (4)
133
Definition acquired from http://cyb3rcrim3.blogspot.com/2008/12/constructive-possession.html, last visited at
31-03-2011
134
Idem note 133
132

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is a storage mechanism that improves performance by transparently storing data such that future
requests for that data can be served faster.135 The data that is stored within a cache might be values that
have been computed earlier or can be duplicates of original values that are stored elsewhere.136 So
when you or I view a webpage the web browser stores a copy of the page you are visiting on your
computers hard drive in a folder or directory. That specific folder or directory is designated as the
cache, and each individual file within that cache is known as a temporary Internet file.
In the U.S. there are numerous cases in which defendants are convicted for knowingly possessing child
pornography on the basis of finding child pornography in their cache file. The Supreme Court in the
United States v. Tucker in 2002 can be considered to be the leading case as it is the only case in which
the U.S. Supreme Court ruled on this issue.137 In this case Tucker states that he did not possess the child
pornography but only viewed it on his web browser. He does concede that he knew that when he visited
the web page, the images on the web page would be sent to his browser cache file and thus saved on his
hard drive.138 However, Tucker states that he had no desire to save the images onto his hard drive and
deleted the images from his hard drive after each session.139
The Supreme Court interprets the definition of possession as the holding or having something (material
or immaterial) as ones own, or in ones control. Tuckers counter argument against having control over
the child pornographic material was that he did not personally save or download the images to his hard
drive and therefore had no control over them. The Supreme Court followed the Districts Court ruling
that Tucker did have control over the material because he made a habit of manually deleting the images
from the cache files which thus established that he exercised control over the material.140 This district
court also rejected Tuckers argument that he did not voluntarily possessed the child pornographic
material on the grounds that Tucker visited the Web sites for the purpose of viewing child pornography
and that the images would not have been stored in his cache file if he had not voluntarily sought out this
material. 141Furthermore, the district court concluded that his possession was knowingly because he
purposefully visited web sites which portray child pornography knowing that the images would be
stored on the hard drive of his computer.142
The fact that Tucker did have control over the material is exemplified by the testimony of Customs
Agent Daufenbach which can be found in the Supreme Court decision. He states that an individual could
access an image in a cache file and could then do numerous acts with it such as send it by e-mail, post it
on a newsgroup, place it on a Web site, or print a hard copy of it.143 This testimony conclusively

135

Definition acquired from Wikipedia, found at: http://en.wikipedia.org/wiki/Caching, last visited at 22-11-2010
Idem note 135
137
U.S. v. Tucker 305 F.3d 1193 C.A.10, 2002
138
Idem note 137
139
Idem note 137
140
Idem note 137
141
Idem note 137
142
Idem note 137
143
Idem note 137
136

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demonstrated Tuckers control over the images stored in his cache file, and thus how he possessed them
according to the Supreme Court.
The Supreme Court also followed the reasoning of the district court with regard to the assumption that
Tucker knowingly possessed child pornography. The Supreme Court repeated the reasoning of the
district court that Tucker intentionally sought out and viewed child pornography knowing that the
images he viewed would be saved on his computer. Furthermore, he continued viewing child
pornography even when he knew that the pornography was being saved, if only temporarily, on his
computer. These circumstances made it so that his possession was voluntary, and thus each time he
intentionally sought out and viewed child pornography with his Web browser, he knowingly acquired
and possessed the images.
The case above mentioned one way in which knowing possession of child pornography in the cache file
on a computer can be established. The first standard that can be established is that if one intentionally
views child pornography when knowing that images of what he is viewing are being stored on his
computer one knowingly possesses child pornography.
A case quite similar to the Tucker case was the case of U.S. v. Bass.144 In this case Bass also viewed child
pornography online but argued that he did not know that the images he viewed online were
automatically being saved to the cache file on his computer. He claimed that a computer virus caused
his browser to save child pornography. So how did the district court construe knowing possession of
child pornography? In this case the criterion formulated by the Tucker decision were applied successfully
again. Bass used two software programs, History Kill and Window Washer, to remove the child
pornography from the computer. These attempts to remove the images were sufficient evidence to
conclude that Bass did know that when he was viewing child pornography these images were being
stored onto his computer. The main difference with the Tucker case is that where Tucker admitted to
know that the images were being saved onto his computer in the cache directory and thus was
convicted upon this prior knowledge Bass did not admit to know this. Therefore, his knowledge of this
fact needed to be proven, and this was done by interpreting his attempts to remove the images from
the cache directory as his knowledge of the fact that the images were indeed being stored onto his
computer.
In a dissenting opinion in the Bass case of Judge Kelly she shows why proving knowledge of the
existence of the cache directory is needed as it would otherwise lead to unwanted consequences:
Knowing possession of pornography cannot be established merely by demonstrating that Mr. Bass was
ignorant, negligent or foolish not to have known that downloading files is easy, and material is saved in
temporary internet files the courts leap from viewing child pornography to knowingly possessing it
based solely on a computer default operation without any proof the defendant knew about such
operations establishes a precedent that mere negligence suffices for criminal liability.145

144
145

U.S. v. Bass, 411 F.3d 1198, 2005


Idem note 144

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This opinion illustrates the Tucker criteria that knowledge of the storing in the cache directory of the
child pornographic images is required. Actions such as viewing, copying and enlarging and deleting
images from this cache directory demonstrate that one has such knowledge and thus knowingly
possesses these images.
Another case where the question arose whether a defendant can be convicted of knowing possessing of
child pornography in the cache file was in the case of U.S. v. Romm.146When Romm was visiting Las
Vegas he was watching child pornography websites in his hotel room on his computer. Romm contends
that he was merely knowingly viewing child pornography but did not knowingly possess it.147 The district
court disagreed with Romms argument and stated that in the electronic context a person can possess
child pornography without downloading it if this person seeks it out and exercises dominion and control
over it.148 In this case the district court assumed that: To possess the images in the cache, the
defendant must, at a minimum, know that the unlawful images are stored on a disk or other tangible
material in his possession.149 In this case Romms control over the child pornographic material in his
cache was established by him enlarging the images on his screen, and saving them there for five minutes
before deleting them.150 Also, while the images were displayed on his screen and simultaneously saved
onto his computers hard drive, he had the ability to copy, print or email the images to others and then
delete the images from his cache directory. This reasoning is in line with the control criterion that was
established in the Tucker case and according to the detective that investigated the case; Romm did
perform these actions and thus knowingly possessed the child pornographic material.
In the case of State v Mobley the court stated how knowing possession in the context of computer
images needs to be interpreted. 151The standard here again is that the defendant: reached out for and
exercised dominion and control over the images. This case illustrates that the criteria for knowingly
possessing images portraying actual minors and images portraying computer images of minors engaged
in sexual explicit conduct are the same, the requirements are that one intentionally seeks out such
materials and exercises control over it.
In conclusion the standards for knowingly possessing child pornographic material in the cache directory
on a computer are 1. That the defendant intentionally seeks out this material and 2. That the defendant
exercises dominion or control over the material. This reasoning is upheld in the cases shown above, but

146

U.S. v. Romm 455 F.3d 990, 2006


Idem note 146
148
Idem note 146
149
Idem note 146
150
Idem note 146
151
State v. Mobley, 118 P.3d 413, 2005
147

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also in the cases of Com v. Simone152, State v. Lindgren153, Kromer v. Commonwealth154, Ward v. State155,
State v. Mercer156, People v. Kent157and many other cases.158
So what if someone knowingly views child pornography but is unaware that images of what he is
viewing are being stored onto the hard drive of his computer?
This question is answered in the case of U.S. v. Stulock.159 In this case Stulock was charged with
knowingly possessing child pornography amongst other charges. In this case the possession charge was
also based on images found in Stulocks browser cache like in the Tucker case. In this case however,
Stulock was acquitted from the knowingly possession of child pornography charge. The district court
explained that: One cannot be guilty of possession for simply having viewed an image on a website,
thereby causing the image to be automatically stored in the browsers cache, without having purposely
saved or downloaded the image.160 The difference with Tucker is thus that Stulock wasnt aware of the
fact that the child pornography he was viewing was being stored in his browsers cache whereas Tucker
was aware of this and regardless of this kept on viewing child pornography.
In the case of U.S. v. Kuchinski a similar verdict was given.161 The appeals court in this case ruled that
Kuchinski did not knowingly possess images found in his computers cache directory. In this case they
refer to the Romm case as comparison material. In the Romm case the evidence demonstrated that
Romm knew about the cache file and took steps to access the material herein and tried to delete them,
this was sufficient to prove dominion and control over the material. Whereas Romm had knowledge and
access to the material this is disputed in this case. Important in this ruling was the perception of the
cache directory as system-protected area and that it takes a sophisticated user to know that such a
cache directory exists, let alone be able to access it.162The appeals court states that: In the case at
hand, there was no evidence that Kuchinski was sophisticated, that he tries to gain access to the cache
files, or that he even knew of the existence of the cache files.163Under number 18 in the document, the
appeals court went on to state that:
Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and
control over those files, it is not proper to charge him with possession and control of the child
pornography images located in those files, without some other indication of dominion and control over

152

Com v. Simone, Not Reported in S.E.2d, 2003 WL 22994245, 2003


State v. Lindgren Wis. 2d 85, 2004
154
Kromer v. Commonwealth, 613 S.E. 2d 871, 2005
155
Ward v. State, 994 So.2d 293, 2007
156
State v. Mercer, Wis 2d 506, 2010
157
People v. Kent, N.Y.S. 2d. WL 4008735, 2010
158
Amongst others: Com v. Diodoro, 932 A.2d 172 , 2007; Assousa v. State, S.W. 3d. 2009 WL1416759, 2009;
People v. Josephitis, 394 Ill.App.3d 293, 2009; and many more
159
U.S. v. Stulock, 308F.3d 922. 2002
160
Idem note 159
161
U.S. v. Kuchinski, 469 F.3d 853, 2006
162
Idem note 161
163
Idem note 161
153

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the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into
dominion and control.164
Another case in which the evidence was insufficient for a conviction on the basis of knowingly
possessing child pornography was in the case of Barton v. State.165 In this case it was argued that Barton
did not know that a cache directory existed or that he knew that images were stored there
automatically according to the testimony of agent Murray.166 In other words, Barton was not deemed to
be a user who was sophisticated enough to know that a cache directory existed, and thus had no
knowledge of how to use it which leads to him being unable to exercise dominion or control over the
material. This lack of knowledge of the existence of the cache directory as mentioned above is not
assumed easily according to the case-law. Most of the time knowledge is easily established as is shown
in the previous section.
In conclusion the standards for knowingly possessing child pornographic material in the cache directory
on a computer are 1. That the defendant intentionally seeks out this material and 2. That the defendant
exercises dominion or control over the material. 3. The defendant must be aware of the existence of the
cache directory.

5.2.2. Files found in the trashcan/recycle bin as evidence of knowingly


possessing child pornography
This section will discuss how files put in the trashcan/recycle bin can be used as evidence in child
pornography possession cases. Although child pornography put in the trashcan/recycle bin is removed it
still remains on the hard drive of a computer and can be - very easily and without any specialized
computer software or specific computer knowledge made accessible again to the computer user. This
section will discuss case-law dealing with child pornography found in the trashcan/recycle bin found in
the U.S.
According to the People v. Girard case, the prosecution has to show more than just the presence of child
sexually abusive material in a temporary Internet file or a computer recycle bin to prove that defendant
knowingly possessed the material.167 The question arises what is meant with to show more to fulfill
the knowingly possession requirement.
This question is partially answered in the case of U.S. v. Clark.168 In this case Clark was convicted for
knowingly possessing child pornography in the allocated files on his computer, more specifically child
pornography found in the recycle bin on his computer. The defendant was convicted on the grounds
that he knew that the child pornography was on his computer and that he had the ability to access and
possess these material. This reasoning of the court seems to be in line with the standards formulated
for having knowing possession of child pornography found in the cache directory/temporary Internet
164

Idem note 161 at 18


Barton v. State, 286 Ga. App. 49, 648 S.E. 2d 660, 2007
166
Idem note 165 at 52
167
People v. Girard, 269 Mich.App. 15, 709 N.W. 2d 229, 2005
168
U.S. v. Clark, F.Supp. 2d, WL 259256, 2011
165

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files. Here too Clark was aware of the fact that he had child pornography on his computer albeit in the
recycle bin, and he was able to access it and thus exercise control or dominion over that material.
Another case in which child pornography was found in the recycle bin of the defendant was the case of
People v. Coleman.169 In this case Coleman was convicted for knowing possession of child pornography
that was found in his recycle bin. In this case evidence for his conviction was found in the fact that his
neighbor saw him downloading child pornography onto his computer and that Coleman joked about this
to him, and that the defendant admitted to the police that he had child pornography on his computer
and that he used Kazaa to seek out and download child pornography. This case illustrates that the court
used the standard of intentionally seeking out child pornography to come to a conviction on the
knowing possession charge.
In most cases relating to child pornography found in the recycle bin there is usually more child
pornography found in either the unallocated clusters or in the temporary Internet files on that
computer. Therefore judges seldomly answer the question whether child pornography found in the
recycle bin can constitute knowing possession of child pornography on its own but rather focus on the
overall question of whether there is knowing possession of child pornography based on all available
evidence. The question of whether child pornography found in the recycle bin can constitute that
offense on its own is therefore hardly ever answered. The cases mentioned above do refer to possession
of child pornography found in the recycle bin as an individual charge of knowing possession. The
standards that I have derived from these cases are the following: 1. The defendant must be aware of the
fact that child pornography is located in his recycle bin; 2. The defendant was able to exercise control or
dominion over this material due to the ease of accessibility of the recycle bin; 3. The defendant
intentionally sought out the material.

5.2.3. Deleted files as evidence of knowing possession of child pornography


In the U.S. there have been cases in which a defendant had deleted child pornographic material but was
still found guilty of knowingly possessing child pornography. This thesis will discuss in this section how
the courts established knowing possession on the basis of deleted material and what the main criteria
are to establish that the defendant in fact knowingly possessed child pornography. But first of all it is
necessary to understand what deleting actually is so that you can understand why in certain cases it can
be used to establish knowing possession.
Deleting does not actually remove the desired material for all eternity, but instead it notifies the file
allocation table that the space previously used by the deleted file can now be used by another file.170
Until another file overwrites the space used by the deleted file, those files or file, or at least those
portions that not have been overwritten, can be recovered.171Furthermore, the time period of

169

People v. Coleman, N.W.2d. 2006 WL 3246261, 2006


Aspatore, Tactics for defending computer pornography charges, 2008 WL 5689422, 2008.
171
Idem note 170
170

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possession does not end when a user deletes the image because the image is only marked for deletion
it still physically exists on the computer, albeit in a different format.172
The case of U.S. v. Angle states why deleted material can still constitute the offense of knowing
possession of child pornography. 173The decisive factor is whether the defendant has knowledge of how
to recover the deleted material, as is shown by the following passage of the ruling of the appeals court
in which they briefly commented on the evidence relating to the deleted child pornography files:
The government put forth testimony, through McDonnell, that a computer utilities program can recover
deleted information on a diskette that has not been overwritten with new information. The specialized
utility program, in effect, decodes the deleted information (here images) in order to render it viewable to
the naked eye. In this sense, the government claims that the pornographic images always existed on the
confiscated diskettes and zip disks. While admitting that the diskettes once contained child pornography,
Angle insists that he had no knowledge on how to recover the deleted files or images. When queried by
the court, however, Angle testified (rather convincingly) about his familiarity with computers such that
the court (here, the fact finder) could have disbelieved his assertion that he did not know how to recover
the deleted files on the diskettes and zip disks found at his residence. In the circumstances of this case,
the government asserted a plausible theory that Angle merely deleted the files in order to safe harbor
his collection of child pornography. The import of this theory being that Angle possessed, with the
requisite knowledge, pornography (though deleted but recoverable) on the confiscated diskettes and zip
disks. That said, however, it is unnecessary to reach the question of whether this evidence standing alone
(or in combination with the confiscated child pornography videotape) is sufficient to support the
conviction.174
The knowledge of how to recover the deleted files in combination with the ability to still be able to
recover the data (thus the data is not overwritten)are the requirements to establish knowing possession
of child pornography when the data is deleted. The possibility to recover the data is seen as a form of
ability to control or show dominion over the material, and is in line with the reasoning seen in the cases
dealing with knowing possession of child pornography in the cache directory. This form of possession is
also knows as possession ex nunc. In most cases the deleting of child pornographic material is one of the
factors that establish knowing possession, and not the sole factor for such an assumption. In the Romm
case the deleting of child pornographic material was also mentioned and established, but since it were
only two images in that case (whereas the minimum requirement is three images for someone to be
convicted) it was not enough to support a conviction.
In the Tucker case the deleting of images from the cache directory was also discussed, the court
reasoned that Tuckers habit of manually deleting images from the cache directory established that he
exercised control over them.175The court in Tucker goes on to state that logically one cannot destroy
172

E. Howard, Dont Cache Out Your Case: Prosecuting Child Pornography Laws Based on Images Located in
Temporary Internet Files, 2004, 19 Berkely Tech Law Journal 1227, 1234 at 22
173
U.S. v. Angle, 234 F.3d 326, 2000, at 340
174
Idem note 173
175
U.S. v. Tucker, 305 F.3d 1193 C.A.10 (Utah), 2002

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what one does not possess and control.176Indeed, the ability to destroy is definitive evidence of
control.177
The issue of having had control over the deleted images, possession ex tunc, was discussed in Carter v.
State.178 In this case Carter was convicted by a district court of possessing child pornography on four
counts. In his case before the district court Carter testified that upon opening three pictures
simultaneously he deleted these images when he realized they contained child pornography, however
he saved another child pornographic image to his My Documents folder on his computer. The forensic
expert in this case found evidence that the three images he opened simultaneously were first saved to
his My Documents folder and were then deleted that same date and were not retrievable without
special software. However, one of them was first renamed from Suck Dad with Sis Watching to
Dc20, which would show his control over the material.
In the appeal case Carter asserted that the evidence is legally and factually insufficient to establish
appellant knowingly or intentionally possessed the images.179 He asserted that the State failed to prove
he had actual care, custody, control or management over these images because he deleted the files
immediately when he realized they contained pornographic images of children.180 In his oral
argumentation he also contended that the evidence was insufficient to prove knowing possession of the
images because the State did not offer any evidence of the amount of time that the images were on his
computer before they were deleted. 181
The state asserted that Carter had control over the images because he had renamed them and chose to
save them in his My Documents directory before he deleted them. With regard to his argument that the
State had to prove the length of time the images were stored on his computer to establish knowing
possession the appeals court stated that possession is a voluntary act if the possessor knowingly
obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to
terminate his control.182 As Carter was able to exercise control over the images, shown by him saving
the images in his My Documents directory, the time period during which he had the images on his
computer had become irrelevant, and was thus left unanswered.
When reviewing the case-law dealing with the question whether the deleting of material from your
computer can lead to knowing possession of child pornography it has become clear that the answer to
this question is evidently yes. The standards that are applied to establish knowing possession of child
pornography in your cache directory are also applied here. Having control over the material seems to be
the decider in these cases. The way in which control is established is different however. The Angle case
states that when a person is able to recover the material and has knowledge of how to do this, these
176

Idem note 175


Idem note 175
178
Carter v. State, 2006 WL3628889, 2006
179
Idem note 178
180
Idem note 178
181
Idem note 178
182
Idem note 178
177

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actions satisfy the control standard, and so possession ex nunc is established. The Tucker case states
that one cannot destroy what one does not possess, which is a reasoning that is upheld in the case-law
discussed above although not in those precise words. Deleting can be seen as destroying of what one
possesses and, as is the case with caching, can be seen as an act of control over the material and thus a
knowing act of possession. Control can also be established from altering the file- or image names of the
material before deleting the material as is illustrated by the Carter case. In short, the standard of control
over the material is also the decisive factor in cases where the material is deleted. Once control is
established the outcome is that there is, or was, knowing possession of child pornographic material, and
thus that there was possession ex tunc. Also acts done with the material during this time period which
show his ability to exercise control or dominion are indications that possession was intended.

5.2.4. Saved files as evidence of knowing possession of child pornography


As is seen above, the standards for judgments based on deleted images is whether one had control over
the material. Evidently, when one knowingly saves child pornographic material onto ones computer this
criterion of control or dominion over the material is met.
The case of U.S. v. McNealy this reasoning is upheld.183In this case the defendant was convicted for
knowing receipt and possession of child pornography based on the evidence that he searched online
using terms that included pre-teen girls and preteen girls Russian and created bookmarks to save
the addresses of favorite websites including one whose name contained LOLITA young preteen, that
the defendant accessed multiple commercial child-pornography websites and viewed and saved images
from them. 184 On McNealys computer more than 9000 images of child pornography were found.
McNealy was convicted for knowingly possessing child pornography on these grounds. The fact that the
defendant saved the material onto his computer and thus knowingly possessed the child pornography is
not explained in detail in the conviction. Evidently it is seen as a known fact that when one saves child
pornographic material onto a computer he or she knowingly possesses that material.

5.3. Knowingly accessing child pornography with intent to view


This section will discuss if and how the online viewing of child pornography can constitute the offence of
knowingly accessing child pornography with intent to view. There are many ways to access child
pornography through information and communication technologies; it is possible to gain access to child
pornography when visiting sites that demand payment to gain access to child pornography, by using
webcams to see live abuse etc.
The case of U.S. v. Cruikshank is one of the few cases in which the defendant was convicted for
knowingly accessing with intent to view child pornography.185In this case Cruikshank paid for online
access to child pornography on the computer he used during his work. On one occasion he paid $49,95
183

U.S. v. McNealy, 625 F.3d 858, 2010


Idem note 183
185
U.S. v. Cruikshank, 667 F.Supp.2d 697, 2009
184

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for 30 days access and on another he paid $94,95.186He also viewed child pornography by using a free
online search engine. The images he viewed depicted very young children, some even under ten years of
age. Notably, however, Mr. Cruikshank did not save these images to the hard drive of his computer.187
He did not email them, distribute them via peer-to-peer software, upload them, trade them, or
otherwise show them to anyone else.188
The court, in its verdict, explains why paying for access needs to be punished. According to the court it is
a serious offense, because by paying for images of child pornography, Cruikshank supported the
creation and distribution of images depicting sexual abuse of children by driving up the demand for such
material, and by rewarding those who create them.189 This reasoning is in accordance with the rationale
discussed in chapter four and therefore a valid argument for this judgment. For these reasons
Cruikshank was found guilty of accessing child pornography with intent to view. However, a ruling by a
different court in a similar case led to a different outcome, namely that such behavior constitutes
possession of child pornography instead of knowingly obtaining access.
In the People v. Flick case the court reasoned why a defendants claim that viewing child pornography
through buying access to that material does not constitute possession but rather constitutes the
criminal offence of knowingly obtaining access to child pornography with intent to view, is incorrect.
190
According to the court possession includes both actual and constructive possession, and they
conclude that a defendant constructively possesses any child sexual abusive material when that
person knowingly has the power and intention at any given time to exercise dominion and control over
the contraband either directly or through another person or persons.191For constructive possession the
same reasoning is applied that is used to come to possession ex tunc. If a defendant was able at any
time to exercise control or dominion over the material then that is seen as constructive possession, here
the court saw the viewing as a constructive method of having possession over the material. When
possession is viewed in this light, defendants arguments that he only viewed, rather than knowingly
possessed child pornography are untenable.192 The court states that:
It is undisputed that each defendant purposely operated his computer to locate websites containing
child sexually abusive material and voluntarily used his credit card to purchase access to websites with
depictions of such material. Upon subscribing to these websites and intentionally accessing the
depictions of child sexually abusive material contained there, defendants knowingly had the power and
the intention at a given time to exercise control or dominion over the contraband depictions of child
sexually abusive material that appeared as either electronic visual images or computer images on
their computer screens. Defendants' insistence that they merely viewed child sexually abusive material is
a chimerical distinction that ignores defendants' intention and power to exercise control or dominion
over the depictions of child sexually abusive material displayed on their computer screens-material that
defendants sought and paid for the right to access. Indeed, the many intentional affirmative steps taken

186

Idem note 185


Idem note 185
188
Idem note 185185
189
Idem note 185
190
People v. Flick, 487 Mich.1, 790. N.W.2d 295, 2010
191
Idem note 190
192
Idem note 190
187

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by defendants to gain access and control over child sexually abusive material belie their claims that they
merely viewed the depictions.193
In most cases intentionally accessing child pornography with intent to view demonstrates control or
dominion over the material and consequently constitutes constructive possession of child pornography.
The main standard for establishing constructive possession of child pornography seems to be that the
person who is viewing the child pornography online needs to have gained access to the material through
payment. This reasoning is upheld in a ruling of the Oregon Supreme Court. This court ruled on the same
subject matter as the Flick case, but came to a different outcome. 194In this case the Oregon Supreme
Court held that the defendants act of accessing Internet websites that contained digital images of child
sexual abuse, which access caused images to be displayed on his computer, without more was
insufficient to establish that defendant possessed or controlled digital images. 195The Oregon Supreme
Court held that there was no constructive possession, and so chose to not criminalize the act of viewing
child pornography unless that act was accompanied by paying, exchanging, or giving anything of
value.196
The case-law regarding accessing child pornography with intent to view suggests that this criminal act
since its introduction in 2008 is mostly used as additional evidence to support convictions for
possession, receiving and other violations of Section 2252A of title 18 of the United States Code. In
almost all cases discussed in the section about knowing possession of child pornography the accessing
and viewing of child pornography were used as an indication of the intent of the defendant to possess
child pornographic material. As seen above, accessing child pornography with intent to view is easily
accepted as that person having and wanting to exercise control or dominion over that material, so that
the claim falls within the scope of the criminal charge of knowingly possessing child pornography. If
accessing child pornography with intent to view is to be seen as having control over or dominion over
that material, than the accessing with intent to view itself has no real worth as a separate criminal
offence. In my view this criminal offence is created to convict persons on possession charges in which
there is a lack of evidence to support the conviction on the initial findings. The accessing with intent to
view child pornography can then be used to construe constructive possession so that the defendant can
still be convicted for the possession charge.

193

Idem note 190


State v. Barger, 2011 WL 31786, 2011
195
Idem note 194
196
Idem note 194
194

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Chapter 6. Case-law review of the


Netherlands
This chapter will discuss the case-law of the Netherlands dealing with the knowing possession of and
knowingly obtaining access with intent to view - child pornography with use of information and
communication technologies. This chapter will first explore what kind of intent is required for an action
to be criminal. Next this thesis will explore how a person can knowingly possess child pornography when
having child pornography in the cache file of a computer. The case law regarding this topic will be
discussed and the criteria for establishing knowing possession will be distilled out of these cases. Next
this chapter will research how the deleting of files, or researching the deleted files, on a computer can
be used to construe criminal possession of child pornography. Here too this thesis aims to find certain
criteria that the courts in the Netherlands apply to establish knowing possession of child pornography.
With regard to the knowing possession of child pornography the final research topic will concern how
saving child pornographic material onto a computer or other data carrier can lead to knowing
possession of child pornography.
After having completed the research questions above, the focus will then shift to research questions
relating to knowingly obtaining access to child pornography with intent to view child pornographic
material. This thesis aims to find the answer to the question whether it is being used as a violation on its
own, or as additional evidence in possession cases.
The research regarding the knowing possession of child pornography will be based on the work Opzet
op de harde schijf: criteria voor opzettelijk bezit van kinderporno (Intent on the hard disk: standards
for intentional possession of child pornography) written by L. Stevens and B.J. Koops, who have
explored the case-law in the Netherlands regarding this topic in great detail. This chapter will expand
upon that knowledge by introducing relevant new case-law that was not available at that time. Case-law
after 15-02-2011 will not be used in this research due to time constraints.

6.1. Conditional intent as a minimal threshold level for intent


In the Netherlands conditional intent is used as a minimal threshold level for establishing intent of a
defendant on a certain criminal offense. This thesis will now explain what is meant with conditional
intent and will show how it is established with help of some examples.
The doctrine of conditional intent was developed out of the necessity to formulate a new standard for
establishing intent for certain severe criminal acts in which normal intent could not be proven. Normal
intent is established when a person knowingly and willingly accepts the consequences of his action.
Conditional intent is established when three criteria are met. First of all it needs to be proven that the
perpetrator wanted to commit his action. Secondly, the perpetrator knew or could have known what

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the consequences of his actions would be. And the third requirement is that the perpetrator accepted
the substantial chance that these consequences would actually manifest themselves.
One example in which conditional intent was established was the so called Hoornse pie case.197 In this
case someone had poisoned a pie with rat poison and had send this pie to its chosen victim in Hoorn.
The wife of the chosen victim had eaten from the pie and died as a result of the poisoning. The court
ruled that the defendant had accepted the substantial chance that the wife would also eat from the pie
and thus had conditional intent on the death of the women.
A second case in which conditional intent was established was the case Enkhuizer manslaughter
case198 In his attempt to escape from the police the drunk driver in this case drove at a high speed
without his lights on in a populated area of Enkhuizen killing two cyclists and wounding a third. Here
again the defendant accepted the substantial chance that by driving drunk and without lighting at a high
speed he could kill people.
Conditional intent is also applied to establish possession of child pornography in cases in which normal
intent is difficult to prove as will be shown throughout this chapter.

6.2. Possessing child pornography


As stated above, this section will explore how files found in the cache file of a computer can constitute
criminal possession of child pornography, and after that the other methods of constructing criminal
possession of child pornography will be discussed, each in a separate sub section.

6.2.1. When is child pornography found in the cache /temporary Internet


files considered possession of child pornography?
As was said in 5.1.1. a cache file is a storage mechanism that improves performance by transparently
storing data that such that future requests for that data can be served faster.199 See 5.1.1. for the
explanation of how the cache works. The question that needs to be answered is when is child
pornographic material found in the temporary Internet files considered to be knowing possession of
child pornography?; And what are the main standards for knowing possession in such a case?
In a ruling by the appeals court (Gerechtshof) of Leeuwarden in 2005 the question arose whether the
defendant, by whom child pornography was found in his temporary Internet files, had knowing
possession of the material.200 The court stated that in order to come to a judicial finding of fact of
having in possession of the concerned images it must be determined that the defendant was aware of
the presence of these images on his computer.201 The child pornographic images in this case were found
in the defendants temporary Internet files. As mentioned before, the Internet browser automatically
197

Hoge Raad, W 9203, 19-06-1911


Hoge Raad, NJ 2001, 327, 23-01-2001
199
Definition acquired from Wikipedia, found at: http://en.wikipedia.org/wiki/Caching, last visited at 22-11-2010
200
Gerechtshof Leeuwarden, LJN AT6636, 22-03-2005
201
Idem note 200
198

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saves images viewed via Internet in the temporary Internet files, no special act from the computer user
is required to perform this data storage. The defendant also stated that he was not aware of the fact
that the computer stored images he viewed on websites in his temporary Internet files. Furthermore, it
appeared that the defendant had no special knowledge of software technical aspects of Internet
programs in general, and of the application of temporary Internet files specifically. In the light of these
findings the court ruled that the defendant was not guilty of knowing possession of child pornography.
The court did state that somewhere in the future the judgment regarding the knowledge of how the
temporary Internet files work might be interpreted as general knowledge for regular Internet users, and
that an Internet user must have been aware of the circumstance that the searched after images of child
pornography on websites by him will be automatically stored onto his computer and temporarily remain
there.202
The advocate general of the Supreme Court (Hoge Raad) also ruled on this question in his conclusion in
2006.203 He stated that:
The ability to exercise control and the requirement that the act is intentional are, certainly when it is
related to proving possession, not to be seen separately. The ability to control in the digital world is
especially knowledge. The person who has knowledge of computers can make more files visible than an
uninitiated user. The person who has knowledge of computers will also know, sooner than the average
user that folders are being generated automatically in which unwantedly and unintentionally data is
being stored. Therefore, the intent on the presence of child pornographic material in the hidden files of
such a person will be easier assumed than if it were an average user. The opposite is also true. Intention
on the presence of child pornographic material in automatically generated files may not be easily
assumed regarding the average computer user.204
In a 2009 case brought before the district court (Rechtbank) of Middelburg the defendant was acquitted
of the charge of having possession of child pornography in his temporary Internet file.205 Here the
defendant acknowledged that he sought out, and viewed, pornographic material of girls under the age
of 18, but claimed that he was unaware that the images were being saved in his temporary Internet files
while he was viewing these images on the websites. The court in this case agreed with the reasoning of
the court in the case brought before the Gerechtshof Leeuwarden that has been previously discussed.
The court stressed that the mere viewing of an image that is child pornographic in nature cannot be
deemed to possession thereof in the meaning of Art. 240b of the Dutch Criminal Code, not even when
this image is deliberately brought onto the computer screen through the Internet.206 In order for it to be
possession this image must be stored onto the computer in a particular way.207 The court then repeats
the reasoning of the Gerechtshof that for judicial finding of fact of having in possession of the
concerned images it must be determined that the defendant was aware of the presence of these images
202

Idem note 200


Hoge Raad, LJN AU9104, 28-02-2006
204
Idem note 203 at 16
205
Rechtbank Middelburg, LJN BL6580, 16-12-2009
206
Idem note 205
207
Idem note 205
203

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on his computer and that the defendant must have had knowledge of the fact that the child
pornographic material was being stored onto his computer. Where the Gerechtshof stated that in future
cases this method of automatically storing images in the temporary Internet files might be seen as
general knowledge, the court in this case disagrees with that assumption, and, in my view, shares the
view of the Hoge Raad ruling of 2006 on this topic. The Rechtbank states that: Although the fact that
computer usage today is fully integrated in our society as well as in education it may not be expected
that this technical knowledge is to be judged as present day common knowledge amongst internet
users.208 With regard to this topic it cannot presumed to be as a fact of common knowledge. The court
acquitted the defendant of the charge of knowing possession of child pornography because, in their
view, it was not proven that the defendant was aware of the fact that the images were being stored,
and thus were present, in his temporary Internet files. The key element in these rulings is that the
defendant had no specialized knowledge of the software technical aspects of Internet programs in
general, and of the application of Temporary Internet Files especially. The defendant is thus to be seen
as an average computer user, and according to the Hoge Raad, intention on the presence of child
pornographic material in automatically generated files may not be easily assumed regarding the average
computer user. Clearly the court in its ruling upheld this reasoning of the Hoge Raad.
The same reasoning is upheld in the cases of Rechtbank Utrecht from 12-05-2010209, 31-05-2010210, 0710-2010211 and 24-09-2010.212
According to the case-law in the Netherlands it seems hard to prove that a person possessed child
pornography based on solely finding child pornographic material in the temporary Internet files. It
seems that something more is needed to prove that the possession was wanted. What this something
more is, that is needed to construe criminal possession will be addressed in the case-law below.
So what if a defendant has the knowledge that child pornographic images are being stored in his
temporary Internet files but tries to remove them immediately, or has specialized software to remove
child pornography from his temporary Internet files and uses this. Will that constitute the offence of
knowing possession of child pornography?
This question is partially answered in the case brought before the Rechtbank Breda in 2006.213 The
defendant, in this case, stated at trial that he viewed child pornographic images on websites but that he
never saved them.214 He downloaded the images so that he could view them, and after having viewed
them he immediately erased them; the defendant also stated that the history settings of the temporary
Internet files were standardly set at 0 days, meaning that the images were never stored longer than 24
hours on his computer. The defendant also regularly cleaned the temporary Internet files manually.
208

Idem note 205


Rechtbank Utrecht, LJN BN1466, 12-05-2010
210
Rechtbank Utrecht, LJN BM9249, 31-05-2010
211
Rechtbank Utrecht, LJN BO2816, 07-10-2010
212
Rechtbank Utrecht, LJN BO1677, 24-09-2010
213
Rechtbank Breda, LJN AV2996, 22-02-2006
214
Idem note 213
209

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From this the court reasoned that it had never been the intention of the defendant to save the images
and thus possess those images. The time period in which the images were saved on the defendants
computer was deemed too short to be considered possession of child pornography, and should be seen
as the mere viewing of child pornography which was not covered by Art.240b of the Dutch Criminal
Code at that time.
The previously mentioned ruling of the Hoge Raad in 2006 also addressed the question what elements
constitute the possession of child pornography in digital context in point 15. The first two elements are,
that it needs to be recorded data and that the defendant at least had conditional intent on the
possession of child pornographic material. The Hoge Raad ruling of 2006 expands upon these elements
by introducing a new element: the ability to exercise control over the material.
The ability to exercise control forms the basis of the intentionality claim. Because the defendant has the
ability to dispose of the subject he can be blamed for having the subject in his presence. For the penal
clause of Art. 240b of the Dutch Criminal Code criminalized possession a similar requirement applies. For
the simple fact that one knows that the neighbor has recorded child pornography, does not bring forth
that one possesses that child pornography himself. It is at least required that the person who committed
the crime is the owner or possessor, or factually has that computer at his disposal. But that is not all. It is
also required that the defendant has control over his computer in such a way that he is able to make the,
in files or documents recorded child pornography, visible. If it concerns hidden files, which can only be
accessed and made visible again by experts (such as forensic investigators) with use of specialized
software, then in a general rule there is no possession of child pornography. In general: obviously not
excluding the possibility that the defendant possesses the required specialized knowledge, either in
person, or in the form of assistance available to him.215
In 2008 a similar case as that of the Rechtbank Breda in 2006, was brought before court in
Amsterdam.216 The difference with the previously discussed case was that here not the Internet browser
but the Windows Media Player automatically stored the data in a cache file, called the Art Cache under
the sub map Local MLS. The defendant in this case viewed child pornographic movies with use of
Windows Media Player, Windows Media Player then made an automatic snapshot/image of the movie,
so that that same movie could be more easily accessed for future use by clicking on that
snapshot/image. It was argued by an expert witness brought before the court that the defendant had
used a cleanup program called BC-Wipe to remove the child pornography because the child
pornography was not found on his computers hard drive, but the snapshot/images were still visible in
the Windows Media Player. The action performed by the defendant to erase the child pornographic
material were an indication that the defendant had knowledge of the fact that child pornographic
material was automatically being saved onto his computer. The using of clean-up software to cover his
tracks was evidence of this knowledge. The Court therefore concluded that the defendant was guilty of
possession of child pornography. This reasoning of the court is in line with the standards of the Hoge
Raad.
215
216

Hoge Raad, LJN AU9104, 28-02-2006


Rechtbank Amsterdam, LJN BD2286, 15-04-2008

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The usage of specialized software to remove child pornography from the temporary files on the
computer was also addressed in the case brought before the Rechtbank Zwolle in 2009.217 Here the
defendant admitted that he intentionally searched the Internet for child pornography and looked at
images in the process, he also stated that he did not download child pornography. What was important
in this case was that the defendant testified that he knew that the child pornographic images he was
viewing would be stored in the temporary Internet files. This testimony convinced the court that
defendant possessed a more than average knowledge of computer knowhow and thus that his
possession was probably intentional. The decisive factors were however that the defendant had two
computer programs, the so called Kremlin program and Eusing Window Washer, on his computer that
he used to encrypt files and that he used to clean his computer. The cleaning program was set on
manual, which meant that the defendant could clean his computer when he deemed necessary. The
court considered that, in the light of the above mentioned arguments, the defendant had, from the
moment he viewed the images until the moment he ordered his computer to clean-up the hard drive,
control over the files concerned, in such a way that it fulfilled the requirements of possession as is
required by Art.240b of the Dutch Criminal Code.218 The standard of having possession over the
material during a definable period of time was also addressed in the ruling of Rechtbank Assen.219 In this
case the court ruled that there was no evidence of possession of child pornography during a period of
time due to the lack of additional evidence, such as more than average knowledge of computers or that
there was control over the material, to support a conviction. This exact same reasoning was also upheld
in a case brought before the Rechtbank Utrecht in 2010.220
Additional evidence of possessing child pornography in the Temporary Internet files can be that the
defendant viewed websites with child pornographic webcam material of persons between twelve and
sixteen years of age.221 Also paying for access to child pornography websites can figure as additional
evidence, and indeed is used as such.222
According to the case-law mentioned above, the standards for establishing ,at least conditional intent of
,possession of child pornography found in the temporary Internet files are that the defendant: 1. Has a
more than average knowledge of the fact that the child pornography was being stored in the temporary
Internet files and 2. Had control over the material stored there by deleting it or by performing other
actions which showed his control over the material 3. Had control over the material during a period of
time.

217

Rechtbank Zwolle, LJN BK7258, 28-10-2009


Idem note 217
219
Rechtbank Assen, LJN BO0534, 15-10-2010
220
Rechtbank Utrecht, LJN BO3818, 09-11-2010
221
Rechtbank Roermond, LJN BI0763, 10-04-2009
222
Rechtbank Roermond, LJN AX9921, 07-07-2006. Paying for access is also used as additional evidence for
establishing intent on possession with regard to child pornography found in the unallocated clusters of a computer
218

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6.2.2. Files put in the trashcan/recycle bin evidence of possession of child


pornography
This section will discuss how files put in the trashcan/recycle bin can used as evidence in child
pornography possession cases. Although child pornography put in the trashcan/recycle bin is removed it
still remains on the hard drive of a computer and can be - very easily and without any specialized
computer software or specific computer knowledge made accessible again to the computer user. This
section will focus on how courts in the Netherlands construe intentional possession of child
pornography when it is found in the trashcan/recycle bin on a persons computer; and will investigate
what the main criteria are that the courts use to convict a defendant or to find him innocent on basis of
finding child pornography in the trashcan/recycle bin.
The court in the case brought before the Rechtbank Arnhem in 2004 ruled on the question whether the
defendant had possession of one image of child pornography through a file he placed in the recycle bin
on his computer.223 The court stated that there were no indications that the defendant had placed the
file in the recycle bin with no other intention than to remove these so that it was plausible that the
defendant did not want to have child pornography in his possession. This reasoning of the court is
strengthened by the arguments that the defendant did not have the intention to use the recycle bin as
storage area for child pornography, the main indicator for this assumption was the fact that defendant
had not opened the files again after he had placed them in the recycle bin.
It is clear that the court in this case ruled that the defendant had no intention to possess child
pornography as he did not view the material after having deleted it. The same reasoning is upheld and
applied in the case brought before the Rechtbank Zwolle in 2005.224 Not re-opening or re-accessing the
files in the trashcan or recycle bin are indicators of intent of a defendant, in cases where there is no
evidence of this there is no intent of the defendant on having possession of the child pornography and,
as such, there cannot be knowing criminal possession of child pornography. The court also attached
much value to the fact that the defendant had notified his parents and neighbors immediately upon
discovering the child pornography, which indicated that he had no intention to possess the material.
So when do files found in the trashcan or recycle bin lead to knowing possession of child pornography?
And what are the criteria that judges apply to construct presumed intent on possession?
The first case in which a defendant was successfully prosecuted for possessing child pornography
through files found in his trashcan was the case brought before the Rechtbank Maastricht in 2008.225 In
this case two files of child pornography were found in the trashcan on defendants computer. The
defendant declared that had worked as a system manager at the Tax Authorities and that he was into
finding out how computer programs work and how data are protected. In light of the defendants
employment history and his knowledge of computers, it was no problem for the defendant to re-access
or retrieve files that were located in the trashcan of the computer. This meant that the defendant had a
223

Rechtbank Arnhem, LJN AR3696, 13-10- 2004


Rechtbank Zwolle, LJN AU1861, 01-09-2005
225
Rechtbank Maastricht, LJN BD4797, 23-05-2008
224

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certain amount of control over those files and thus had possession over the child pornography that
those files contained.
The main standard that is used in this case is that the material was easily accessible for the defendant,
which was being associated with his ability to exercise control over the material. When putting these
standards for criminal possession of child pornography together it can be determined that, the
accessibility of the trashcan is coupled to the possibility that the defendant can exercise control over the
material stored therein, this supposition leads to the fact that conditional intent on the possession of
child pornography can be established. This construction for establishing the intent on the possession of
child pornography when it is put in the trashcan is also applied in other case-law, as is illustrated by the
case brought before the Rechtbank s-Hertogenbosch in 2008.226 When answering the question whether
the defendant was or was not in possession of child pornographic material that he had deleted, it was
necessary to ascertain if the defendant could exercise control over the material. Secondly, it needed to
be established to what degree intent on the possession of the files could be determined form the acts
performed by the defendant. In its guilty verdict the court attached particular value to the fact that the
files were located in the Recycler and were easily accessible for the hard disk user. Again, the ease of
accessibility is associated with his ability to exercise control over the material. The courts imply that
when the files are easily accessible there is a factor of control over the materials because they can still
access and look at it when they like, this combination leads to conditional intent on the possession of
child pornography. The same construction is upheld in other cases.227 One might wonder why the
Rechtbank Arnhem in its ruling in 2004 ruled differently, this is perhaps due to the change in viewpoint
regarding the possession of child pornography or due to the fact that the defendant only possessed one
image of child pornography where in most cases more material is found.
In general it can be concluded that putting files in the trashcan/recycle bin constitutes conditional intent
on the possession of child pornography. According to the courts, the accessibility of the child
pornography files in the trashcan/recycle bin opens up the possibility to exercise control over the
material and thus constitutes conditional intent on the possession of that material unless it is proven
otherwise. The exemption that the possession was unintentional can be assumed if it is shown that the
defendant had not accepted the substantial chance that the child pornography would remain on the
hard drive of the computer, the courts in Zwolle and Arnhem employed such exceptions to the rule.

6.2.3. How files retrieved from the unallocated cluster can serve as evidence
for possession of child pornography
In most cases in the Netherlands where intentional possession of child pornography is being contested,
the child pornography is found in the unallocated clusters on the hard drive (or similar places, such as
lost folders).228 5.1.3. mentioned what these unallocated clusters are and how they come to be.
While the computer itself cannot find the files independently anymore, it is possible to retrieve the data
226

Rechtbank s-Hertogenbosch, LJN BG9125, 24-12-2008


Rechtbank Assen, LJN BJ8750, 29-09-2009, Rechtbank Assen, LJN BO0534,15-10- 2010
228
L. Stevens, B.J. Koops, Opzet op de harde schijf; criteria voor opzettelijk bezit van kinderporno, Delikt &
Delinkwent 39, p 4
227

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with specialized forensic software. In most cases, after a forensic investigation has taken place, child
pornography can still be found on a persons hard drive while that person was sure that those materials
were permanently removed. This fact raises the question whether defendants in such cases actually had
intentional possession over the child pornography before it was deleted. This section aims to investigate
when that is the case, and what criteria the courts use to determine that the possession was, in fact,
intentional. First will be discussed the cases in which the defendant was found innocent of possession of
child pornography found in the unallocated clusters, why they were found innocent and what the
decisive factor was in those cases. Next, the cases in which the defendant was found guilty will be
discussed and why this was the case and what in those cases the decisive factors were.
A first quick scan of the case-law regarding the question whether possession of child pornography can
be established when it is found in the unallocated clusters shows that the ruling of the Hoge Raad of
2006 and the standards that were determined to establish, at least conditional intent of, criminal
possession of child pornography are also valid in these cases. Those standards are also applied to the
case-law discussed here as a check list to determine whether or not the possession was intentional and
thus criminal. Therefore there must be at least: conditional intent on the possession, the data needs to
be recorded and the defendant must be able or had to be able to exercise control over the material.
The first case that deserves our attention is the case brought before the Rechtbank Groningen in
2008.229 On the computer of the defendant films and pictures containing child pornographic material
were found. The pictures were found in the folders lost files and unallocated clusters. According to
the official statement of an investigative officer in this case the contents of these folders consists of
deleted files and is only accessible with use of specialized software, which defendant did not have in his
possession. On the basis of these considerations the court ruled that it was not shown that defendant
had intentional possession of the images, because it lacked the requirement of intentional
documentation, and thus the defendant was found innocent of the possession charge relating to the
child pornography found in the unallocated clusters.
It is a general consensus amongst courts in the Netherlands that if a defendant does not have
specialized software in his possession to recover the child pornography from the unallocated clusters
there is no ground to convict him for possessing child pornography. Numerous cases illustrate this
view.230 The element of having control over the material is also a necessity in determining whether the
possession was intentional, if control is not established it can lead to acquittal.231 The time period in
which a defendant had, or could have had, control over the material is a point that is essential in some
cases. The courts do not only look at possession as having it in possession at this moment, possession ex
nunc, but also consider it to reach as far as to having had possession over child pornographic material,
thus possession ex tunc. Possession ex tunc can be established if it is proven that the defendant at one
time had access to the files containing child pornography and that those files were on his hard drive
229

Rechtbank Groningen, LJN BC3529, 28-01-2008


Gerechtshof s-Gravenhage, LJN AV2588, 23-02-2006, Rechtbank Leeuwarden, LJN BK2796, 10-11-2009,
Rechtbank Arnhem, LJN BL9892, 02-04-2010, Gerechtshof s-Hertogenbosch LJN BM6289, 16-04-2010, Rechtbank
s-Gravenhage, LJN BO5184, 26-11-2010, Rechtbank s-Gravenhage, LJN BO5163, 26-11-2010
231
Rechtbank s-Hertogenbosch, LJN BH0895, 27-01-2009
230

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before they ended up in the unallocated clusters. That could be the case if the defendant had
downloaded those files onto the hard drive of his computer, subsequently put them in the trashcan and
then deleted them, which made those files end up in the unallocated files. Some courts easily establish
possession ex tunc, by stating that files containing child pornography found in the unallocated clusters
were once in the allocated clusters and thus accessible.232 However, this reasoning is more the exception
than the rule.
The Gerechtshof s-Hertogenbosch also found a defendant guilty of having had possession of child
pornography found in his unallocated clusters in 2007.233 In this case the appeal court ruled that
defendant had, during a certain period of time, possession of child pornographic material. In its
judgment the appeal court states that it would be different if the defendant, or a third party, had
accidently downloaded the material onto his computer or placed it there in another way, and that the
defendant immediately after discovering the child pornography had deleted the material. In this case
neither exemption seemed to apply to the defendant.
Most courts determine whether there was possession on the basis of two standards: 1. If there ever was
intentional recording (so not by accident) of child pornography or; 2. If the defendant did everything he
could to remove the child pornography from his computer as soon as possible upon discovering it.
The first standard that is established is that the recording needs to be intentional. For the recording to
be intentional it is required that the defendant intentionally saved -or was aware of the fact that - the
child pornography was being automatically saved onto his computer.234 Other factors can be relevant in
assuming that the recording was intentional. If the defendant has a more than average knowledge of
computers this assumption is more likely to be established.235 If it is evident that a defendant has used a
pay-site to gain access to child pornography or,236 if a defendant has shown that he possesses certain
computer skills, such as the altering of child pornographic images with a computer program,237then that
are strong indications that the recording was intentional.
If a defendant has been making a habit of collecting child pornography over a substantial period of time,
than that is also an indication that he had knowledge of the fact that he was obtaining child
pornography.238 If at other accessible areas of the hard disk child pornography has also been saved then
the courts will also assume possession of the child pornography found in inaccessible areas of that hard

232

Rechtbank Zutphen, LJN AU1918, 02-09-2005, this reasoning is upheld by the appeal court in the same case,
Gerechtshof Arnhem, LJN AV2184, 22-02-2006
233
Gerechtshof s-Hertogenbosch, LJN AZ8027, 25-01-2007
234
For example, Rechtbank s-Hertogenbosch, LJN BH0895, 27-01-2009, according to this court a defendant that is
lacking this knowledge than can be acquitted of having had possession of child pornography
235
Hoge Raad, LJN AU9104, 28-02-2006
236
Rechtbank Roermond, LJN AX9921, 07-07-2006
237
Gerechtshof s-Hertogenbosch, LJN AZ8027, 25-01-2007
238
Rechtbank Breda, LJN AY5686, 04-08-2006, Gerechtshof s-Hertogenbosch, LJN AZ8027, 25-01-2007, Rechtbank
Assen, LJN BG9649, 25-11-2008, Rechtbank Arnhem, LJN BL7418, 15-03-2010

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drive.239An indication for not having wanted possession of child pornography can be that the defendant
did not have an own folder structure in which he stored child pornography.240
The second standard that is used is the question whether the defendant had removed the child
pornography from his computer as soon as possible upon discovering said material. If it is already
decided that the defendant had intentionally recorded child pornography then this standard will not be
applied. However the standard is relevant in those cases in which it is decided that the defendant was
not intentionally recording child pornography241, or in those cases in which the question whether the
defendant had intentionally recorded child pornography is not being addressed. The standard is
formulated in the case brought before the Gerechtshof Arnhem in 2005: The material had passed him
by at a certain moment and he rid himself of the material in the most effective method available to a
average computer user.242 A special effort done by the defendant is not required to fulfill the most
effective method requirement, at least not if he is an average computer user. Removing the child
pornography from the trashcan is deemed sufficient by the courts in the Netherlands.
An element that is associated with determining whether or not a defendant had removed child
pornography from his computer is time. If the defendant immediately after discovering that he had
obtained child pornography removed this material from his computer, then that is an indication that the
defendant wanted to effectively remove the material.243 If it is unclear how much time had passed
between the recording and the deleting of the child pornography that can be explained in the benefit of
the defendant.244 The opposite is also possible, as is shown by the case brought before the Gerechtshof
s-Hertogenbosch in 2007245. It can be negatively explained if the defendant states that he had not
immediately removed the material when a time period is being addressed that is sufficient enough to
speak of possession and in which the defendant had committed acts (such as making new folders and
altering images) that show an active relationship with child pornography.246 Other courts make a similar
assumption.247 Removing the child pornography on the same day can be a reason to assume that there
was possession of child pornography if it is shown that the defendant had accepted the chance that he
would gain possession of child pornographic material.248 That a defendant accepted this chance can be
assumed if a defendant has intentionally sought out child and found child pornography before with
certain search keywords and that the defendant had not altered these search keywords.249

239

Rechtbank Breda, LJN AY5686, 04-08-2006, Rechtbank Roermond, LJN AX9921, 07-07-2006, Gerechtshof sHertogenbosch, LJN BI9150, 23-06-2009, Rechtbank s-Hertogenbosch, LJN BL6800, 10-03-2010, Rechtbank
Arnhem, LJN BL7418, 15-03-2010
240
Rechtbank Dordrecht, LJN AV0150, 19-01-2006
241
Idem note 234
242
Idem note 234
243
Rechtbank Breda, LJN AV2996, 22-02-2006
244
Gerechtshof s-Gravenhage, LJN AV2588, 23-02-2006
245
Gerechtshof s-Hertogenbosch, LJN AZ8027, 25-01-2007
246
Idem note 245
247
Rechtbank s-Hertogenbosch, LJN BL6800, 10-03-2010, Rechtbank s-Gravenhage, LJN BP1920, 06-01-2011
248
Rechtbank Assen, LJN BG9649, 25-11-2008
249
Idem note 248

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In general it can be concluded that child pornography found in the unallocated clusters can lead to
possession ex nunc if the defendant has used specialized software to retrieve the material. Child
pornography can also be in a persons possession ex tunc. The decisive factor is then whether or not the
defendant had the intent on acquiring child pornography at that time. His intent is distilled out of his
active relationship with child pornography. If a defendant has performed actions such as paying for
access to child pornography sites, altering images, or actively sought out child pornography, those
actions show his intent on acquiring child pornography, and thus make the claim that he intended to
have possession over that material more plausible. If a defendant lacks the intent on acquiring and has
showed that he immediately and effectively tried to remove child pornography upon discovering that
material, then that shows that the defendant had no intention to possess child pornography and that
defendant will be acquitted of having had possession of child pornography.

6.2.4. Saved files as evidence of possession


The advocate general in his conclusion in the Hoge Raad ruling of 2010 specified the criteria for
determining whether or not a person possessed child pornography.250 An essential element of
possession is seen in the ability to exercise control over the material. Having in possession of an
electronic file that contains, or is, an image that is child pornographic in nature, assumes the possibility
to determine where the file is located and with that the possibility to dispose of that file. In case that file
is recorded on a data carrier, the ability to exercise control over that data carrier includes/implies the
ability to exercise control over the data recorded onto it.
Moreover, possession assumes intent, which in this case means:
1. Knowledge of the existence of the data carrier and the file;
2. Knowledge of the ability to exercise control over that material;
3. Knowledge of the child pornographic nature of the specific image.
Conditional intent is, constantly, sufficient. The downloading of files that contain images of which the
name of that image says a great deal about the character of that image, is an intentional exposure to
the substantial chance that one obtains child pornographic material.
In light of the above mentioned standard it is evident that when a person intentionally saves child
pornography onto the hard drive of his computer he intentionally possesses that material.

6.3. Obtaining access to child pornography


Obtaining access to child pornography has been criminalized in the Netherlands since the first of January
2010. This section will investigate whether there are any court rulings on this subject matter since and, if
so, what standards are applied to determine that a defendant accessed child pornography.
Unfortunately, no case-law dealing solely with the legal question whether a defendant obtained access
to child pornography is currently available in the Netherlands. Gaining access to child pornography via

250

Hoge Raad, LJN BO1713, 26-10-2010

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pay-sites that offer child pornography is used in case-law in the Netherlands as additional evidence for
(conditional) intent on possession on behalf of a defendant.
A case that is remarkable is the case brought before the Rechtbank s-Gravenhage in 2010.251 In this case
the defendant was acquitted of the charge of possessing child pornography, but the court stressed that
the dossier in this case contained important indications that defendant had obtained access to child
pornography. What the courts consider to be important indications is unclear, but the court most
probably refers to the fact that the defendant admitted that he visited websites containing child
pornography and that defendant viewed images on those websites.

251

Rechtbank s-Gravenhage, LJN BO5184, 26-11-2010

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Chapter 7. Conclusion
This thesis has researched how the caching, the deleting, and the downloading of files, images and
videos, and the online viewing of child pornography can constitute the offenses of possessing and
obtaining access to child pornography in both the U.S. and the Netherlands. My research has given
insight into the relationship between the rationales behind the anti-child pornography legislation of
both nations and their standards to judge whether possession or obtaining access to child pornography
was intended. This chapter will answer the main research questions and will explain the differences and
similarities that exist between both nations model for criminalizing possessing and obtaining access to
child pornography.

7.1. Rationale of both nations anti-child pornography legislation


When looking at the rationale behind both nations anti-child pornography legislation it is evident that
similar effects of the child pornography market are used as a reason for drafting the legislation and its
amendments. Three factors stand out as the main rationales for criminalizing the possession of and
obtaining access to child pornography.
The first is that the use of children in the production of child pornography is a form of sexual abuse
which can result in physical or psychological harm or both to the children involved. This harm needs to
be prevented at all costs and is the main reason for criminalizing offenses relating to child pornography.
The second rationale for criminalizing child pornography in both nations is that child pornographic
material is being used to encourage or seduce unforthcoming children into sexual exploitation.
The third rationale is found in the view of the legislators that exposing oneself to child pornography may
desensitize the viewer for child pornography. This can go so far that it child pornography becomes
acceptable and desirable which could lead to a subculture in which the sexual exploitation of children is
accepted and encouraged. The forming of such a subculture needs to be prevented and was one of the
main reasons for widening the scope of the anti-child pornography legislation in both nations.
Now that we know that the same rationales are applied, and thus can assume that the same behavior is
criminalized, it will be interesting to see if the acts of the caching of files, the deleting of files and the
downloading of child pornographic material lead will to a conviction based on similar standards in both
nations.

7.2. Standards for possessing child pornography found in the cache file
With regard to the question whether the caching of files/files found in the temporary Internet files can
constitute possession of child pornography the U.S. and the Dutch courts apply similar standards. In the
U.S. it is required that a defendant meets three requirements for the possession to be knowing and thus
criminal.
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First, the defendant needs to have intentionally sought out the child pornographic material.
Intentionally seeking out child pornographic material is often distilled out of the search behavior of
defendants. If a defendant uses key words such as preteen or Lolita in search engines in
combination with other key words such as sex, it is obvious that that person was intentionally seeking
out material containing child pornography.
Secondly it must be proven that the defendant could exercise dominion or control over the child
pornographic material. Dominion or control will be established if the defendant copied, enlarged or
deleted the material or performed other actions which showed his ability to exercise control over the
material.
The third requirement is that the defendant must have been aware of the existence of the cache
directory/temporary Internet files. A defendant who is not aware of the existence of the cache
directory/temporary Internet files shall not be convicted of knowingly possessing child pornography.
This awareness of often derived from the fact that the defendant had exercised control over the
material, because deleting child pornography from the cache directory/temporary Internet files implies
knowledge of the existence of that cache directory/temporary Internet files. If a defendant is unaware
of the existence of the cache file/temporary Internet files and can prove this than that is often reason
enough to acquit the defendant from all charges.
In the Netherlands other standards are applied in judging whether a person intentionally possessed child
pornography through files found in his cache directory/temporary Internet files. Courts in the
Netherlands have decided that, for the possession of child pornography to be criminal, there must be at
least conditional intent on the possession of that material. Conditional intent is established when a
defendant has consciously accepted a significant chance that a certain consequence of his actions would
follow, in this case that he had consciously accepted the significant chance that he would possess child
pornography.
A first standard that is applied in judging whether there was at least conditional intent on the possession
of child pornography found in the cache directory/temporary Internet files, is establishing whether the
defendant had a more than average knowledge of computers and thus of the fact that the child
pornography was being stored in the cache directory/temporary Internet files. A more than average
knowledge of computers can be established if a defendant, for example, has admitted that he knew that
child pornography would be automatically stored in the cache file/temporary Internet files or that he
deleted material from the cache directory/temporary Internet files showing that he knew that the cache
directory/temporary Internet files existed.
The second standard that is applied is standard that is similar to the second standard applied in the U.S.,
namely that the defendant had control over the child pornography found in the cache
directory/temporary Internet files. Control can be established if a defendant has deleted material from
the cache directory/temporary Internet files or when the defendant has used specialized software to rid
himself of child pornographic material. This second standard is closely related to the first standard in
such a way that control over the material in the cache directory/temporary Internet files is used to
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construe a more than average knowledge of computers and thus also knowledge of the existence of the
cache directory/temporary Internet files on behalf of the defendant. When that knowledge is construed,
in combination with his ability to exercise control over said material, the standards for at least
conditional intent on the possession of child pornography are established.
The third standard that is applied is that the defendant must have had possession over the child
pornography located in the cache directory/temporary Internet files during a definable period of time. If
the time period in which the files were saved in the cache directory/temporary Internet files was
deemed to be too short, then there was no possession of child pornography and it is seen as mere
viewing of child pornography which is not criminal. However, if a defendant had, from the moment he
viewed the material until the moment he ordered his computer to clean up the hard drive, control over
the files concerned than that is deemed to be possession of child pornography. This is seen as having
had possession ex tunc over the files in the cache directory/temporary Internet files. Using special
software to delete the child pornography from the cache directory/temporary Internet files are an
indication of his intent to at least possess the material until he decided to use the specialized software
to delete the material.
In case-law dealing with child pornography found in the cache directory/temporary Internet files, in
both the U.S. and the Netherlands, there are some factors that may acquit a defendant from the
possession charge. In the U.S. most acquittals are based on the fact that the defendant was an
unsophisticated computer user and thus lacked the knowledge of the existence of the cache
directory/temporary Internet files which made his possession not knowingly. In the Netherlands a
similar construction is upheld, namely that the defendant must have a more than average computer
knowledge for the defendant to have knowledge of the existence of the cache directory/temporary
Internet files. If such knowledge is not established then there is no intent on the possession of child
pornography. Also, if a defendant in the Netherlands immediately after discovering the child
pornography on his computer deleted that material, than the time period in which he had that material
on his computer is considered to be too short for it to be intentional possession of child pornography ex
tunc. The immediate removal of the child pornography shows that he had had no intention to possess
the child pornography.

7.3. Standards for possessing child pornography found in the


trashcan/recycle bin
The next research question was how files found in the trashcan/recycle bin of a defendant can
constitute the criminal possession of child pornography.
In the U.S. there are not many cases that deal solely with the question whether files found in the
trashcan/recycle bin can constitute knowing possession of child pornography. In most cases child
pornography that is found in the trashcan/recycle bin is part of the other evidence that is found, such as
child pornography found in the unallocated clusters or cache directory/temporary Internet files, and is
therefore used as additional evidence to establish knowing possession of child pornography. The few
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cases that do deal with the topic of how child pornography in the trashcan/recycle bin can be criminal
possession offer a few standards to deem that possession knowingly. The first standard is that the
defendant must be aware of the fact that child pornography is located in the trashcan/recycle bin. The
second standard is that the defendant must be able to access the material and thus exercise dominion
or control over the material. The last standard is that the defendant must have actively sought out child
pornography.
Whereas in the U.S. there is little case-law to be found on the matter of possession of child pornography
found in the trashcan/recycle bin, this is much different in the Netherlands. In the Netherlands
numerous cases deal with this research question which have led to the drafting of clear standards that
are applied in deciding whether or not the child pornography found in the trashcan/recycle bin was at
least conditionally intended. In the U.S. this is not so much the case.
The standards that are applied in the U.S. are that, first of all, the defendant must at least be aware of
the fact that he had child pornography on his computer although that it was located in the
trashcan/recycle bin. Knowledge of the presence of child pornography is thus required.
Secondly, because the child pornography is located in the trashcan/recycle bin it is still easily accessible
which means that the defendant can still exercise control or dominion over the child pornography
located there. As long as the material is still easily accessible control or dominion over that material is
assumed.
A third possible standard seems to be that the defendant must have intentionally sought out the child
pornography in order for the possession to be knowingly. This was brought up in the Coleman case as
evidence, although I am not quite sure that it therefore should be seen as a separate standard. I think
that I will be mostly used as additional evidence to show the mindset of the defendant on acquiring the
child pornography and thus on his intent to possess said material.
The main standard that is being applied in the Netherlands is whether the child pornography was still
easily accessible. If the material is still easily accessible, then that is coupled to the ability of the
defendant to exercise control over the child pornographic material. According to the courts, the
accessibility of the child pornography files in the trashcan/recycle bin opens up the possibility to exercise
control over the material and thus constitutes conditional intent on the possession of that material
unless it is proven otherwise. With proven otherwise it is meant that if a defendant can show that he or
she did not accept the substantial chance that he or she would possess child pornography then there is
no criminal possession of child pornography. Not re-opening or re-accessing the material are indications
for the defendant not having wanted possession over the material. Also notifying others of the fact that
you have downloaded child pornography can weigh in the courts decision to find the possession to be
unintentional.
The ease of accessibility and the ability to exercise control over the child pornography are, in both
nations, essential standards in determining whether possession was intended when it is found in the
trashcan/recycle bin. The difference between both nations is that in the Netherlands, it seems that
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individual prosecutions for having possession in the trashcan/recycle bin are more frequently employed.
In the U.S. it is mostly used as additional evidence in possession cases and not so much as an individual
violation.

7.4. Standards for possessing child pornography found in the


unallocated clusters
Child pornography found in the unallocated clusters on a computer is a theme that is frequently
investigated in both nations case-law. In cases dealing with child pornography found in the unallocated
clusters the possession is divided into having had possession of child pornography, possession ex tunc,
and still being able to have access to child pornography, possession ex nunc.
In the U.S. the standards for possession ex nunc are the following. First of all the standards that are
applied to construe knowing possession of child pornography found in the cache directory are also
applied in these cases. What is important in these cases is that the defendant must have knowledge of
how to recover the deleted files. This knowledge is assumed if the defendant has specialized software to
retrieve the files from the unallocated clusters, or if the defendant admits to have that knowledge.
It is also required that the defendant is still able to recover the data. The ability to still be able to recover
the data is seen as a form of ability to exercise control or show dominion over the material. Having
control over the child pornography is often the deciding standard in these cases.
With regard to possession ex tunc of child pornography found in the unallocated clusters similar
standards are applicable. Besides the required standard of having intentionally sought out the material
the standard of having had control over the material is the decider in case when it needs to be proven
that at one time the defendant had possession of child pornography. Time is a factor in these cases. As
the Carter case has explained: possession is a voluntary act if the possessor knowingly obtains or
receives the thing possessed or is aware of his control of the thing for a sufficient time to terminate his
control. So if a person keeps the child pornography on his computer for a period of time, maybe alters
the file names or does any other act that shows that he is aware that the material concerned is child
pornography, and then after that time deletes them, then that behavior is deemed to be knowing
possession of child pornography ex tunc. His acts during the time that the child pornography was on his
computer show his control over that material, which is then the decisive standard for assuming knowing
possession of child pornography.
In the Netherlands the standards for possession ex nunc of child pornography in the unallocated clusters
are as follows. Again at least conditional intent is required for the possession to be criminal, the data
needs to be intentionally recorded and the defendant must be able to exercise control over the
material.
The first standard is that the recording needs to be intentional. For the recording to be intentional it is
required that the defendant purposely saved, or was aware of the fact that, the child pornography was

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being automatically saved onto his computer. If a defendant has shown that he has an active
relationship with child pornography then that is a strong indication that the recording was intentional.
The ability to exercise control, as is required for possession ex nunc, can be established if the defendant
has used specialized software to retrieve the child pornography from the unallocated clusters. The usage
of specialized software indicates that the defendant can still exercise control over the material which is
sufficient to establish at least conditional intent on the possession of that child pornographic material.
With regard to the possession ex tunc, the above mentioned standards also apply. However, the
decisive factor is then whether or not the defendant had the intent on acquiring child pornography at
that time. Again, the active relationship with child pornography is important. If a defendant has
performed actions such as paying for access to child pornography sites, altering images, or actively
sought out child pornography, those actions show his intent on acquiring child pornography, and thus
make the claim that he intended to have possession over that material more plausible. Also, the time
period in which the material still remained on the computer, and the actions performed with the
material in that time period, before it was deleted are important. If in that time period the defendant
had exercised control over the material by storing it in new folders or by altering images, then that
shows that at that time he had intended to possess that material. If the former is the case, then
intentional possession ex tunc can easily be established.
A defendant can be acquitted from knowingly possessing child pornography found in the unallocated
clusters of a computer in the U.S. if the defendant does not have any knowledge of how to retrieve the
child pornography from the unallocated clusters and if one does not have any specialized software
installed on his computer to retrieve the child pornography from the unallocated clusters. Similar
exemptions are also applied in the Netherlands. The lack of any specialized software on the defendants
computer that can be used to retrieve the child pornography from the unallocated clusters is an
indication that the defendant had no intention to possess that child pornography and is a ground that is
often successfully used to be acquitted of the possession of child pornography charge. Another factor
that can be decisive in the possession ex tunc cases is the fact whether or not the defendant had
immediately after discovering the child pornography deleted that material. If so, that is a strong
indication that defendant had no intention to possess child pornography.
When answering the research question whether the saving of child pornography onto ones computer
will constitute the offense of knowing possession in the U.S; or intentional possession of child
pornography in the Netherlands. Both nations immediately deem this as criminal possession of child
pornography.
In the U.S. the saving of child pornography meets all the standards. It indicates that one intentionally
sought out such materials and had control over that material. Possession in cases where a person
deliberately saves child pornography onto his computer are seen as knowing possession per se, and are
accepted as knowing possession in case-law without any further explanation as to why this is so. It is
generally seen as a known fact that when one saves child pornography onto his computers hard drive
that person knowingly possesses that child pornography.
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The Dutch courts also assumes that when a defendant intentionally saves child pornography onto the
hard drive of his computer then that is considered to be intentional possession of child pornography.
The intentional downloading and saving shows that the defendant had knowledge of the existence of
the data carrier and the file; knowledge of the ability to exercise control over that material and
knowledge of the child pornographic nature of that material. It thus meets all the requirement set forth
by the A-G of the Hoge Raad in 2010, and therefore it is evident that when a person intentionally saves
child pornography onto the hard drive of his computer he intentionally possesses that material.

7.5. Is obtaining access to child pornography criminal?


With regard to the question whether obtaining access to child pornography with intent to view in the
U.S. it is clear that is mostly used as additional evidence to support a conviction on the basis of knowing
possession, receiving and other violations relating to child pornography. This is not a complete surprise
as it has only been introduced in the United States Code since 2008. In almost all cases discussed in the
section about knowing possession of child pornography the accessing and viewing of child pornography
were used as an indication for the intent of the defendant on possessing child pornography material.
Accessing child pornography with intent to view is easily accepted as that person having and wanting to
exercise control or dominion over that material, so that the claim falls within the scope of the criminal
charge of knowingly possessing child pornography. If accessing child pornography with intent to view is
to be seen as having control over or dominion over that material, then the accessing with intent to view
itself has no real worth as a separate criminal offence. In my view this criminal offence is created to
convict persons on possession charges in which there is a lack of evidence to support the conviction on
the initial findings. The accessing with intent to view child pornography can then be used to construe
constructive possession of child pornography.
However, I have found one case in which a defendant was convicted solely for accessing child
pornography with intent to view. In this case the defendant had paid for access to child pornography
and viewed the child pornography online without saving any of it. A standard that can be derived from
this case is that the defendant actively sought out child pornography and thus helped maintain the child
pornography industry. According to the rationales behind the U.S. anti-child pornography legislation
harm done to the children as a result of sexual exploitation of those children needs to be prevented. By
paying money to view child pornography one stimulates the child pornography industry into producing
more material, and so this person contributes to the harm done to the children that fall victim to the
child pornography industry. That is naturally a worthy reason for criminalizing accessing child
pornography with intent to view. However, it is not a standard for finding that behavior to be criminal,
although the court in that case did convict the defendant on the above mentioned rationale. In my view,
one case in which a defendant was successfully convicted on the ground of a rationale is insufficient to
speak of a general standard that can be applied. For it to be a standard more case-law should
incorporate this reasoning, and due to the lack of any other case-law on this subject matter I think it is
premature to speak of a standard.

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In the Netherlands obtaining access to child pornography has only recently, since the first of January
2010, been adopted in the Dutch Criminal Code. Unfortunately I was unable to find any case-law dealing
with the legal question whether obtaining access to child pornography was criminal or not. Gaining
access to child pornography is used as additional evidence in a lot of cases relating to the possession of
child pornography on the hard disk prior to the introduction of the new penal clause. Gaining access to
child pornography via pay-sites is then used to construe intent on the possession of child pornography
on behalf of the defendant. In the future there will probably be more case-law dealing with convictions
based on gaining access to child pornography as the legislation is changing to deal with the new
technological developments in the child pornography scene. New technical developments will probably
focus on avoiding having child pornography in ones possession to view it and will probably shift to more
online viewing in closed circuits, or scrambled connections. If such developments would occur then the
penal clause of gaining access to child pornography will have more weight as a penal clause on its own
on which to base convictions rather than being used as additional evidence in possession cases which is
the current trend.

7.6. Differences between the approach of the U.S. and the Netherlands
Although the U.S. and the Netherlands apply similar standards for convicting defendants for possessing
child pornography with the specific acts done with a computer mentioned above, I do feel that there are
some differences in each nations approach to come to a successful conviction. In the U.S. possession of
child pornography is more easily established due to the way in which the courts construe the evidence
to fit the possession of child pornography charge. I have noticed in numerous cases that the courts in
the U.S. seem to prefer to convict a defendant on the possession charge rather than on other grounds
such as accessing child pornography with intent to view. I have seen numerous cases in which there was
sufficient evidence that the defendant had accessed child pornography with intent to view that material,
but in which this evidence was used to construe criminal possession of child pornography. It occurs to
me that courts in the U.S. aim for the highest possible sentence when dealing with charges relating to
child pornography, therefore they usually interpret all available evidence to fit the possession charge in
order to get the highest possible sentence. In the Netherlands this is not so much the case.
Another difference that struck me is the fact that possession of child pornography is more easily
assumed in the U.S. This is for the most part due to the above mentioned approach that the main focus
of the courts in the U.S. is to come to a successful conviction for possessing child pornography. In the
Netherlands possession of child pornography is also easily established, but for instance the possession
of one image of child pornography is insufficient to come to a successful conviction. In the U.S. in such a
case they will probably seek out additional evidence to support a conviction on the basis of possessing
one image of child pornography, because the main focus is to successfully prosecute each defendant
that is charged with a violation of the anti-child pornography legislation.

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